Cases and authorities

SUCCESSION [251] – Wills, probate and administration – Construction and effect of testamentary dispositions – Legacies and devises – Lapse and interest undisposed of – Whether lapse of gift – Gift to such nieces and nephews of my mother as my sister shall appoint – Sister predeceases testator without having made appointment – Five nieces and nephews survive sister but three of them predecease testator.

APPEAL – Uniform Civil Procedure Rules 50.3(1)(c) and 50.12(1)(c) - appeal from Associate Justice – whether wrong principle, extraneous or irrelevant matters or mistake of fact – no error found – appeal dismissed

CRIMINAL LAW – Controlled Operations – Intersection of Commonwealth and State parallel provisions – meaning of “controlled activity” – absence of Commonwealth certificate – Crimes Act 1913 (Cth) Part 1AB, Law Enforcement (Controlled Operations) Act 1997 s7(1)(b) - ADMINISTRATIVE LAW – Judicial review of administrative decisions – Lack or excess of jurisdiction – issues of fact – facts reviewable – - jurisdictional facts or conditions precedent – statutory prohibition on authorising conduct likely seriously to endanger health or safety – Law Enforcement (Controlled Operations) Act 1997 s7(1)(b) - ADMINISTRATIVE LAW – Judicial review of administrative decisions – Lack or excess of jurisdiction – unreasonableness and irrationality – statutory prohibition on authorising conduct likely seriously to endanger health or safety – interpretation of causation – relevant evidence to be taken into account – Law Enforcement (Controlled Operations) Act 1997 s7(1)(b) - WORDS AND PHRASES – “controlled activity” - “reasonable excuse”

CONSTITUTIONAL LAW – Imperial, colonial, state relationships – imperial legislation – inherited law – adopted law – applicability of statute law – Habeas Corpus Act 1640 (Imp), s 6, s 8 – Imperial Acts Application Act 1969, s 6. - ADMINISTRATIVE LAW – Prerogative writs and orders – habeas corpus – appropriateness of remedy – whether habeas corpus or appeal appropriate – where writ sought on order made by superior court of general jurisdiction - PROCEDURE – Courts and judges generally – judges – immunity from proceedings – alleged improper denial of right to trial by jury – where claimant charged with contempt of court and served sentence of imprisonment – Habeas Corpus Act 1640 (Imp), s 4, s 6 – Imperial Acts Application Act 1969, s 43

CRIMINAL LAW - Murder - Not guilty due to mental illness - Conditional release - Mental Health Review Tribunal

Power of Roads Authority to grant a short-term lease - of unused public roads - notice - compliance - conditions to exercise of power

CONTRACTS – Unjust contracts – Mortgage and loan contract – Relevant circumstances – Where money borrowed for improvident investment – Purpose of the loan – where lender aware that loan for purposes of investment but not of particular investment proposed nor of improvidence – where false information provided to lender by borrowers’ agent – where lender considered and was satisfied that loan was serviceable – where unfair tactics used against borrower by promoters of investment scheme but not by or on behalf of lender – whether lender engaged in “asset lending” – whether unjust that lender failed to detect false information supplied to it – NEGLIGENCE – professional liability – solicitors – independent advice – where solicitor retained to advise on mortgage and loan contract – where solicitor not retained to provide advice on proposed investment – where client about to enter into improvident transaction which ought to have been apparent to solicitor – whether solicitor had or ought to have had knowledge of extraordinary risk associated with investment – where investment subsequently failed – whether solicitor liable for failure to advise on investment – whether suggestion that solicitor should obtain independent legal and financial advice sufficient

CRIMINAL LAW - Crown appeal on sentencing - Whether sentence manifestly inadequate - Periodic detention - Whether Court should intervene

PRACTICE - ESTOPPEL - Anshun estoppel - Abuse of process - Earlier proceedings alleging contract to purchase plaintiff's shares - Defendant puts on cross-claim against intermediary - Cross-claim stayed and intermediary takes no further part in proceedings - After earlier proceedings lost, plaintiff brings proceedings against intermediary alleging negligence - Whether plaintiff acted reasonably - Possibility of inconsistent decisions - Whether later proceedings should be dismissed.

TORTS – negligence – duty of care of landlord to tenant – respondent fell through ceiling of an attic roof area of premises owned by the appellant – respondent was the co-tenant of the premises – condition of roof area – whether roof area constituted a dangerous defect – whether the condition of the roof area rendered the premises unfit for the purposes for which they were let such that a duty of care was imposed on the appellant. D

ADMINISTRATIVE LAW - Workers Compensation - what constitutes "additional relevant information" for the purposes of s327(3)(b) of the Workplace Injury Management and Workers Compensation Act 1998 - role and function of Medical Appeal Panel under s328 - whether Panel failed to give sufficient reasons - costs.

Residential park - factors to be considered in determining whether an increase of rent is excessive - role of s 57 of the Residential Parks Act

Insurance. Accident and sickness insurance. Determination of date from which interest should run under s57 of the Insurance Contracts Act 1984 (Cth).

Property, Stock and Business Agents Act 2002 - meaning of "real estate agent" - whether claim barred by operation of s 9(2)

Proceedings dismissed with costs - said to be interlocutory decisions - construction of Court rule concerning enforcement of costs orders

Legal practitioners - admission - appeal from refusal by Legal Practitioners Admission Board - prior acquittal for criminal offences - whether open to court to investigate and find facts adversely to appellant - whether difference between admission of practitioner and discipline of admitted practitioner - whether burden of disproof wrongly placed on applicant - whether failure to consider current suitability for admission - no error shown.

Motor vehicle accident - pedestrian on road at night in isolated industrial area - whether actual findings of trial judge were "glaringly improbable" - alleged inconsistency between statements made to police and evidence at trial - causation - did evidentiary onus on causation shift to defendant if breach established - whether accident could have been avoided - existence of rational explanation for accident inconsistent with negligence.

Proceeds of crime – stealing Commonwealth property and defrauding the Commonwealth – appeal against dismissal of notice of motion – motion to transfer balance of property to defendant – appeal out of time– forfeiture of property – whether appeal futile – whether error in holding property was not proceeds of unlawful activity – whether property ought to be excluded from forfeiture

DEFAMATION – Challenge to 7A trial jury verdict – member of NSW Legislative Assembly – alleged defamatory material published in newspaper articles – editorial and cartoon – whether failure to give adequate directions to jury at the 7A trial – directions on the meaning of “rort” – whether answers returned by jury were not open to a reasonable jury

Family Law. Relationship between parties. Whether a de facto relationship or a close personal relationship. Period of relationship. Respective contributions of parties. Acquisition of various pieces of real property. Adjustment of interests of parties in property.

CIVIL PROCEDURE – UCPR 36.15 – application to set aside judgment on basis obtained by fraud – plaintiffs unsuccessful at first instance and in Court of Appeal – application for special leave to appeal to High Court refused – fresh attempt to rely upon evidence available at trial – re-agitation of application made in Court of Appeal – no basis for disturbing decision of trial judge demonstrated – application for leave to issue subpoenas in hope of eliciting evidence to support application – abuse of process - applications dismissed – ABUSE OF PROCESS – inherent power of court to control applications - power to retrain the making of unwarranted and vexatious applications – prejudice to the community in general and litigants in particular – plaintiffs restrained from filing motions without leave

CRIMINAL LAW - Appeal - Application for leave to appeal against sentence - Whether error by trial judge in failing to find applicant otherwise of good character - Whether sentence manifestly excessive.

Sentence - Parity - Co-offender given discount for assistance - No basis for justifiable sense of grievance.

CRIMINAL LAW – s 5D appeal against sentence – sexual intercourse without consent upon stepdaughter – attempt to choke – affected by drugs – concurrent sentences imposed – objective seriousness of an offence – standard non-parole periods – principles of Crown appeals – whether too much weight given to subjective circumstances – whether sentence manifestly inadequate

CRIMINAL LAW – Appeal against conviction and sentence – accessory after the fact to attempted armed robbery – indictments – defect in Court Attendance Notice – absence of “attempted” on the CAN – appellant charged with the completed offence – whether “attempted” needed to be included on the CAN – whether error in failing to take into account the correct maximum penalty for the offence – whether sentence failed to reflect the different penalties in the appellant’s offence and the co-offender’s offence

CONTRACT – lease agreement – proper construction of clause in lease agreement – whether clause totally governed the rights and obligations of the parties where lessee failed to remove structure – whether clause augmented the rights of the parties – whether lessor intended to abandon any remedies for breach of contract arising by law – principle of concurrence - CONTRACT – implication of term in lease agreement – lessee required to remove structure on leased land before expiry of the lease term – lessee required consent from statutory authority before wharf could be removed – whether lessee under implied obligation to take all steps necessary to obtain such consent – whether lessee required to appeal from refusal of statutory authority to grant consent to remove wharf - CONTRACT – lease agreement – clause provided lessor could retain structure situated on leased land at expiration of term of lease or remove structure and seek liquidated damages – negotiations between lessor and lessee in relation to removal of structure occurred over six period – lessor sought removal of part of the structure – whether lessor had decided to retain the structure - ENVIRONMENT AND PLANNING – lessee required to remove wharf situated on leased land before expiration of lease term – pursuant to cls 36 and 37 of North Sydney Local Environment Plan 1989 (NSLEP 1989) removal of wharf required consent from North Sydney Council – whether NSLEP 1989 inconsistent with Sydney Regional Environmental Plan No 23 (SREP 23) so that Maritime Services Board was the relevant consent authority – whether “demolition” was included in “development” under the Environmental Planning and Assessment Act 1979 (NSW) so that SREP 23 applied to the exclusion of NSLEP 1989 - EQUITY – specific performance – failure to remove structure before expiry of term – distinction between specific performance and an order that a contractual obligation be performed in specie – where a contract has come to an end specific performance of obligations that were to be performed during the term is not available – where in specie performance of an obligation is sought the underlying equity required for such an order is one appropriate to the actual relative legal situations of the parties - EQUITY – specific performance – failure to remove structure before expiry of lease term – breach of clause provided for lessor to recover damages from lessee where lessor removed the structure – whether damages an adequate remedy - EQUITY – equitable damages sought pursuant to s 68(b) of the Supreme Court Act 1970 (NSW) – in determining an application for equitable damages pursuant to s 68(b) the trial judge was required to determine whether the court could have granted specific performance as at the date of the commencement of the proceedings - LOCAL GOVERNMENT – statutory construction of local government legislation – trial judge held exclusive control of wharf vested in Maritime Services Board pursuant to s 33 Sydney Harbour Trust Act 1900 (NSW) – trial judge applied rule of statutory construction that general legislation which is inconsistent with particular legislation does not repeal the particular legislation – whether trial judge erred in finding inconsistency between s 33 of Sydney Harbour Trust Act and s 68 of the Local Government Act 1993 (NSW) – whether Local Government Act was contrary to or diminished the lessor’s exclusive control in respect of the demolition of the wharf

COSTS – Abatement of appeal proceedings – Appellant died after judgment but prior to pronouncement of final orders – Principles regarding effect of death of a party to incomplete proceedings – Judgment effect was that deceased’s conviction had to be set aside – Rights of parties determined and merged in judgement – No basis in circumstances of case to prevent court from giving effect to its judgment given before death by making consequential orders – Nature of proceedings – whether criminal or civil – whether necessary for another party to be substituted in place of deceased party – STATUTORY INTERPRETATION – Principles in relation to power and limitation on costs order against a public prosecutor – s.70 Crimes (Appeal and Review) Act 2001 – whether investigation into the alleged offence was conducted in an unreasonable or improper manner – whether proceedings in Local Court were initiated without reasonable cause or in bad faith, or were conducted by the prosecutor in an improper manner – whether prosecutor unreasonably failed to investigate (or to investigate properly) any relevant matter – whether because of other exceptional circumstances relating to the conduct of proceedings by the prosecutor, it is just and reasonable to award costs

PROCEDURE - costs - where no determination on the merits - where principal claims formulated in such a way that they would have failed - where first defendant offered consensual resolution that would have avoided ex parte relief

CORPORATIONS - winding up - application for order setting aside statutory demand - whether originating process and supporting affidavits served within time - whether deficiencies in s.459E(3) affidavit may be relied on although not mentioned in supporting affidavit - Graywinter principle discussed - whether absence from s.459E(3) affidavits of statements that debt due and payable and not subject to genuine dispute warrants setting aside of demand - whether genuine dispute shown

Breach of mass requirements - liability of occupier - defence of reasonable steps - statutory construction - corporation - actual and constructive knowledge of directors and management

EQUITY [363] Equitable remedies- Injunctions- To restrain breach of confidence- Estate Agent's rent roll- How far confidential information- Defendant claims many clients personal friends and acquaintances- Arguable case that defendant has plaintiff's confidential information- Appropriate to extend injunction. TRADE & COMMERCE [216]- Restraints of trade- Validity and reasonableness- Particular cases- Employment- Covenant provided, inter alia, that defendant would not engage in conduct detrimental to competitive position of plaintiff- Held covenant aimed at protecting plaintiff from competition- Invalid.

GUARANTEE & INDEMNITY [33]- Rights of surety- Company gives three mortgages- Surety provides guarantees- Surety sells own property and pays proceeds to first mortgagee- First mortgage later discharged- First mortgagee pays surplus and provides title deeds to second mortgagee- Surety claims these as held on trust for surety because of operation of subrogation- Held no subrogation as no unconscionability in second mortgagee retaining surplus and title deeds- Quaere in any event whether there would have been any trust.

COSTS - Offer of compromise below rejected - Offer of compromise on appeal also rejected - Indemnity costs of appeal extends to period before offer made where offer also made below - ASSESSMENT OF COSTS - Interest - Where only part of the total costs are awarded - Interest calculated in same proportion as costs allowed to total costs

Appeal from Local Court sitting as the Victims Compensation Tribunal - whether error in assessment by compensation assessor - whether error in point of law on the part of the Tribunal - whether denial of natural justice by Tribunal.

Practice and procedure - application to amend defence to raise limitation of liability - whether conditions should be imposed - whether plaintiff will be prejudiced by such an amendment - whether and to what extent the plaintiff would have conducted the litigation differently had the defence been raised earlier.

TRADE AND COMMERCE – misleading and deceptive conduct – representations concerning treatment and substances – whether capable of curing etc or delaying onset or progression of diseases including cancer, multiple sclerosis and Huntington's disease – alternative medical practitioner – limited declarations and orders made

COSTS - Appeal - Offer of compromise below not accepted - No offer in relation to appeal - Indemnity costs granted for the proceedings, not the appeal.

SUPERANNUATION – Total and permanent invalidity benefit – Claim for benefit under superannuation scheme – Review of trustee’s decision – Whether decision was one that reasonable person could reach on information available to trustee - Whether trustee’s decision void - Whether court should exercise discretion itself or send back to trustee.

[STAY] - [SECURITY] Application to declare determination void - no application to set aside judgment - Building and Construction Industry Security of Payment Act 1999 - Whether proceedings should be stayed under s 25(4) pending payment of security by the plaintiff - whether stay should be ordered otherwise where pleadings appear to circumvent the intention of the legislation

CRIMINAL LAW - Manslaughter - Sentence - Excessive self-defence - Low end objective seriousness - Age of offender - Outstanding prospects of rehabilitation

Claim for possession - summary judgment - joinder of defendants - alleged estoppel

DEFAMATION - pleadings - statement of claim - defendants' strike-in application - whether plaintiff should plead as one publication accompanying documents - imputations - questions of form and capacity

Sentence - Manslaughter - Excessive self-defence - significant degree of recklessness.

Professional negligence - solicitors - advocate's immunity - omission to advise - whether plaintiff would have taken advice, if given

ADMINISTRATIVE LAW - decision by Director General of SES to deregister unit and revoke appointment of Local Controller - whether requirement to observe principles of natural justice - whether rights and interests of individuals directly affected - whether "practical injustice" occurred.

APPEAL from magistrate - Local Courts Act - failure to attend arbitration - award made in absence of party - no application made for rehearing within time - application for rehearing refused by magistrate - whether denial of natural justice

CORPORATIONS - winding up - application by plaintiff for order setting aside statutory demand - application by defendant for summary dismissal - where no affidavit in support of plaintiff's application both filed under s.459G(3)(a) and served under s.459G(3)(b) - where defendant had not proved service of statutory demand in any manner specified in s.109X - where statutory demand received by plaintiff, treated as statutory demand and acted upon

CRIMINAL LAW - appeal against conviction and sentence - whether evidence of police interview of complainant in 1995 wrongly admitted – whether probative value outweighed by prejudice to accused – relevance of delay in complaint – no direction sought by counsel for accused – Crown address – whether improper – no criticism by trial judge – no request for remedial direction – whether verdict unreasonable having regard to delay in complaint – whether jury should have had reasonable doubt having regard to evidence contradicting complainant – more than inconsistence or contradiction required – complainant's evidence not demonstrably or arguably unreliable or incredible – jury's verdict plainly open – CRIMINAL LAW – sentence – accumulation – head sentence reduced by fifty per cent – failure to give effect to special circumstances – non-parole period reduced from 7 years to 5 years