Cases and authorities

SENTENCING - two offences - firing firearm in public place - possession of unregistered firearm - concurrency and accumulation - totality principle - whether error in partial accumulation or it was contrary to totality principle - distinct offences - could possess without firing - could fire registered firearm - firing was significant additional offence - no error shown.

Appeal against sentence – Drug Misuse and Trafficking Act – supply large commercial quantity of ecstasy – Crimes (Sentencing Procedure) Act s23 – offer of assistance unlikely to be used – no large discount appropriate – plea guilty – conditional liberty on drug offence – sentence of 11.5/7.5 years not excessive

PRIVILEGE - client legal privilege - school accident - accident form completed by teacher - teacher obtained statements from witnesses - whether statements were confidential documents within meaning in Evidence Act 1995 - consideration of implied obligation not to disclose contents - no obligation - not confidential documents - whether court will inspect documents for which privilege claimed - can inspect and did so because might have contained something material to confidentiality - whether dominant purpose of provision of professional legal services relating to anticipated proceedings - consideration of when proceedings are anticipated - was the dominant purpose - but statements not privileged because not confidential documents.

COSTS – provision in lease that lessee to pay lessor’s costs where no judgment recorded against lessor – whether the effect of the orders of the court was that a judgment was recorded against the lessor - COSTS – appropriate order for costs on appeal and at trial where appellant partially successful on appeal – successful points on appeal subject of significant evidence and submissions at trial

COSTS - Indemnity certificate under Suitors' Fund Act 1951

COSTS - repayment of amount paid into court - no question of principle.

Corporations Law. Application to set aside statutory demand under s459G of the Corporations Act. Application filed one day out of time. Application dismissed.

Novation - identity of employer - supporting evidence

Appeal - security for costs - corporate appellant - financial position of persons standing behind the company

[PROCEDURE] - [COSTS] - Whether appropriate to grant costs order against the defendant following plaintiff's discontinuance of proceedings - Whether unreasonable for defendant to withhold true position as to status of possible easements in favour of Telstra - Whether appropriate for plaintiff to file Notice to Produce in respect of same documents the subject of application for preliminary discovery - [PRACTITIONERS] - Need for care in filing 'pleadings' in urgent matters - [CLIENTS] - Duty to Court to facilitate just resolution of real issues in proceedings

CORPORATIONS - winding up - insolvency - creditors seek declaratory relief and money judgment based on alleged "voidable transactions" - creditors seek declaratory relief and money judgment based on alleged insolvent trading - whether such claims maintainable by creditors - whether claims should be dismissed or struck out

Appointment of tutor - person under legal incapacity - parens patriae jurisdiction

ESTOPPEL [35]- Estoppel in pais- Matters against which estoppel does not prevail- Statutory provisions- Contract for sale of land- Defendant rescinds after plaintiff fails to provide certificate of insurance as required by s 96A of Home Building Act- Plaintiff claims defendant knew insurance effected, pleads estoppel- Held policy of statute to protect consumers- Doctrine of estoppel cannot operate against or nullify this statutory purpose- No estoppel can lie against defendant.

PROCEDURE [32] – Courts and Judges generally – Adjournment – Doubts cast on mental state of self represented defendant in proceedings under Corporations Act for civil penalties.

DEFAMATION - pleadings - imputions of "reasonable suspicion" - specificity of imputations - whether imputations should be struck out as bad in form

CONVEYANCING [117]- Position of parties after completion- Other matters- Defendant buys property for $2.6 million- $1.6 million payable on completion- Balance payable when purchaser transfers or assigns interest in property- Defendant sets up trust and transfers its interest in subject property to new trustee before completion- Vendors later signed caveat naming new trustee as registered proprietor- Not an acquiescence in transfer- Outstanding purchase monies payable. ESTOPPEL [29]- Estoppel by convention- Not made out as no evidence of common assumption.

VENDOR and PURCHASER - Collateral contract - oral agreement collateral to written contracts for sale of land - whether oral collateral agreement enforceable where inconsistent as to consideration with written contracts. Vendors (respondents) agreed to purchase property from the Clarkes - appellants agreed to pay Vendors $150,000 and out-of-pocket expenses if Vendors and Clarkes rescinded their contract and Clarkes sold to appellants at same price - Clarkes refused and Vendors settled their purchase from Clarkes - later appellants agreed to purchase property from respondents in contracts stating same price as in contract with Clarkes, with oral agreement to pay extra $150,000 and out-of-pocket expenses if respondents would sell - HELD that the oral collateral agreement was inconsistent with the written agreement and was unenforceable.

PROCEDURE - discharge of order of judge of appeal - necessity for error of law or material fact or within principles of review of discretionary decisions - COSTS - application for leave to appeal against failure to order costs in favour of applicant - whether security for costs of trial should remain in place - extent of security to remain - whether error in judge of appeal permitting reduction - on proper understanding of judge's reasons, no error.

REAL PROPERTY – chattels and fixtures – manufactured homes / moveable dwellings – object and purpose of annexation – intention of parties – legislative scheme – whether moveable dwellings on a manufactured home estate were intended to be merged with the realty in the light of the intention of the parties and the impact of legislation concerning the installation of manufactured homes on manufactured home estates – question as to whether the legislative scheme precludes a moveable dwelling from being a fixture a vexed one - TORTS – negligence – duty of care – breach – whether the cross-appellant had breached its duty of care to the first respondent by failing to qualify land valuations it had made for the benefit of the first respondent and by failing to carry out adequate investigations to determine the true nature of the manufactured home estate in question - TORTS – negligence – causation – whether the appellant’s breach of duty (namely, its failure to advise the first respondent not to go ahead with a loan transaction in the light of its inability to ascertain the legal consequences of the land in question being a manufactured home estate) was causative of the first respondent’s loss - TORTS – negligence – contributory negligence – whether the first respondent, by its conduct, was contributorily negligent – foreseeable risk of injury – whether the first respondent exposed itself to a risk of injury that might reasonably have been foreseen - TORTS – negligence – mitigation of damage – whether the first respondent, by its conduct, had failed to mitigate its loss

CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – costs of security arrangements

DEFAMATION – imputations in original proceedings arising from a television broadcast – fresh proceedings commenced pleading imputations arsing from the introduction to the broadcast – introduction 45 minutes before the main broadcast – attempt by plaintiff to amend statement of claim in original proceedings – amendment not pursued due to concessions made by the defendant – whether the plaintiff is estopped from commencing fresh proceedings – whether leave required to bring fresh proceedings

CRIMINAL LAW - trial by jury - application for verdict by direction - first count alleges defrauding the Commonwealth contrary to s.29D Crimes Act 1914 (Cth) - elements of causation, dishonest means and deprivation - Crown case that revenue put at risk - what is required for Crown to establish that revenue was put at risk - second count alleges agreeing to receive benefit on understanding that exercise of duty would be affected contrary to s.73 Crimes Act 1914 (Cth) - application for verdicts by direction refused - counts under s.29D and s.73 left to jury

CONVEYANCING – vendor’s lien – vendor requested “Credex dollars” as part payment for sale of property – whether “Credex” trading scheme was in operation at time of sale – whether valuable consideration given by purchaser CORPORATIONS – deregistered corporation restored to register – effect of restoration – Corporations Act 2001 (Cth) s 601AH REAL PROPERTY – indefeasibility of title – personal equities – effect of vendor’s lien

COMMERCIAL LAW: Application by defendants for summary dismissal, stay of proceedings - application by plaintiff to file amended statement of claim and join additional plaintiff - assignment of causes of action in contract and tort - proceedings by assignee - whether assignment valid - whether assignee had genuine commercial interest - public policy considerations - joinder of assignor as plaintiff - whether potential for conflict.

Basha inquiry - changes in position of principal Crown witness on critical evidence before trial - removal of prejudice to the accused.

CIVIL PROCEDURE – interlocutory application for access to documents for forensic examination – dispute as to authenticity of platinum bullion certificate - application opposed in absence of orders for proper security arrangements and payment of associated costs – document allegedly uninsurable – orders for forensic examination of document made – plaintiffs to make such security arrangements as advised

[JUDGMENTS] - Date when judgment "takes effect" for the purposes of determining the date from which the 28 day moratorium commences when calculating interest on a judgment debt under s 101(3) of the Civil Procedure Act 2005 where Court of Appeal substitutes the amount of damages - [INTEREST] - Whether interest to be awarded on judgment debt - [INTEREST ON COSTS] Whether first instance Court can make order for interest on costs awarded by Court of Appeal - Whether interest should be awarded

Judge alone trial - murder - defence of mental illness

CONVEYANCING [184]- Agreement with broker to arrange loan and be paid fee- Fee purportedly secured over land some of which not owned by customer- Whether broker may maintain caveat- In circumstances caveats must be removed. MORTGAGES [16]- Equitable mortgage- Informal document signed when retaining broker- How far enforceable- Problems with option to purchase included in documentation- Attitude of equity to interest rates exceeding 48% pa.

PRACTICE AND PROCEDURE - order for examination and production of documents under s 108 Civil Procedure Act - whether s 108 permits orders in aid of enforcement of an injunction - discretionary considerations

CORPORATIONS - winding up in insolvency - application for order setting aside statutory demand - whether genuine dispute as to existence of debt - debt said to arise from oral contract - conflicting versions of relevant conversation - subsequent evidence calling in question existence of contract - genuine dispute shown

CONTRACTS - General Contractual Principles - Consideration - Terms of settlement not performed by defendant - Acknowledgment signed by him that sum due to him by plaintiff to be reduced by $100 per day of his remaining in occupation of premises that were to be vacated under the terms of settlement - Whether forbearance to sue is good consideration - Whether an oral agreement varying the terms of settlement was made

Jurisdiction of the Commission - suitable employment and reinstatement - privative clause

[CONTEMPT] - [ORDERS] - Whether defendant should be restrained from sending letters personally to directors and officers of plaintiffs rather than to their legal representatives - Whether necessary to make a formal finding of contempt - Whether Court's powers for management of proceedings adequate exercise of power to restrain defendant

Decision of Appeal Panel - insufficient reasons

SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Whether grant of probate should be revoked - Executor husband of deceased asserting debt against the estate and not gift - No documentation - Dependant upon assessment of his own veracity - No details of how $200,000 raised by deceased by mortgage at elderly age spent - Alleged agreement to transfer half interest in house upon payment of half purchase price and not an agreement for sale - Whether conflict of interest and duty makes executor not a fit and proper person to continue as executor

STRATA TITLES – Common property – Whether waterproof membrane under tiles on uncovered terrace is common property or property of lot owner – Whether lower boundary of cubic space of lot is upper surface of concrete slab or upper surface of tiles on top of slab – Where lower boundary not specified by registered strata plan – Where tiles laid prior to registration of strata plan – Strata Schemes (Freehold Development) Act 1973 ss 5(1), 5(2), 8(1) – DAMAGES – Breach of statutory duty – Loss of rent – Principles – Wrongdoer must take his victim as he finds him

COSTS – Indemnity Costs – Main matter - Discretionary considerations – Whether party failed to act reasonably in rejecting offer where they had a strong case - COSTS – Indemity Costs on cross-claim – Where offer of compromise contained no time limit – Period of indemnity costs – Where offer of compromise not renewed after trial

INSURANCE [2]- Policies of insurance- General matters- Policy provides for payment of expenses reasonably incurred by insured, provided expenses incurred with insurer's consent- Defendant insurer repudiates policy- Plaintiff insured settles claim and seeks costs of reports prepared for settlement- Defendant refuses to pay, claiming its consent was never obtained- Defendant liable to pay reasonable costs of settlement. PROCEDURE [574]- Costs- Departing from general rule- Order for costs on the indemnity basis- Where defendant declines offer of settlement- Whether vitiated by defendant's inability to evaluate offer due to lack of information- Plaintiff's right to indemnity costs not dislodged by fact defendant's solicitors complained about sufficiency of discovery- Indemnity costs to be paid from date of plaintiff's offer of compromise.

Co-owners - contribution mortgage and acquisition expenses - occupation fee

Motor Accidents Compensation Act - Pt 3.4 - Review Panel

Proper Officer - reasons - ground of additional relevant information - denial of natural justice - discretionary considerations (including alternative statutory remedy)

DAMAGES – whether assessment of damages excessive – whether damages assessed with respect to plaintiffs on individual basis or jointly DEFAMATION – publication about firm of solicitors by former clients – identification evidence – pleadings and particulars alleged defamation of partners individually not jointly – whether defamatory imputations conveyed with respect to the firm or the firms partner’s individually

CIVIL PROCEDURE - UCPR 14.28 - application for strike out or orders for provision of proper answers to particulars - claim by plaintiff for malicious prosecution, wrongful arrest and false imprisonment against former employer - detailed request for particulars by defendants requiring over 200 responses - proper purpose or function of particulars to provide what is reasonably necessary to identify the case to be made out at trial - application for strike out refused - order for provision of certain answers to particulars to be provided

APPEAL – right of appeal from Medical Tribunal to Court of Appeal – Medical Practice Act 1992 (NSW) s 90 and s 154 – meaning of error “with respect to a point of law” – power of Court to review decision of Tribunal in relation to whether practitioner is not of good character – basis on which Court may interfere with exercise of disciplinary power by Tribunal MEDICAL PROFESSION – professional misconduct – unsatisfactory professional conduct – “not of good character” – general practitioner providing false medical certificates – disciplinary orders of Medical Tribunal – whether deregistration appropriate – Medical Practice Act 1992 (NSW), ss 36(a) and (m), 37, 39(b) and (e) WORDS & PHRASES – “with respect to a point of law” – “not of good character”

REAL PROPERTY - Torrens System - application for extension of caveat - caveator claims equitable interest pursuant to a finance broking agreement - agreement authorises broker to lodge caveat to protect interest in payment of fee, even where loan is not procured - no equitable interest where, on construction of agreement, no fee payable

No case application - r 29.10 of the UCPR - loan advance paid to third party - no direction to pay - whether inference of actual/implied/ostensible authority open

PROCEDURE – expert evidence – expert evidence list – where expert evidence not reasonably required to resolve issues in the proceedings

CORPORATIONS - winding up in insolvency - non-compliance with statutory demand - pending s.459S application for leave to defend on ground of solvency - leave not needed - oral s.459S application to rely on dispute concerning debt subject of statutory demand - application too late - only evidence of solvency is uncorroborated word of director - defendant's onus not discharged - orders made

CORPORATIONS - winding up - statutory demand - application to set aside - whether genuine dispute as to existence of debt - CORPORATIONS - fundraising - debt said to arise from and reflect rights of defendant under s.724 of Corporations Act - disclosure document issued by plaintiff in relation to offer of shares for subscription - chief executive of plaintiff later dismissed - shares later issued - whether s.724 gave defendant right of action to recover subscription moneys