Cases and authorities

DAMAGES – DAMAGED CHATTEL – MEASURE OF DAMAGES – COST OF REPAIRS – MUST NOT BE EXTRAVAGANT OR UNREASONABLE

EVIDENCE – EXPOSURE TO CIVIL PENALTY – PRIVILEGE - CORONER’S COURT – EXPOSURE TO CIVIL PENALTY – STATUTORY CERTIFICATE - DISCRETION

PRACTICE AND PROCEDURE - Jurisdiction - Whether proceedings should be allowed to go forward in New South Wales - Whether defendants should have leave to withdraw their Notice of Appearance - Forum non conveniens - "Clearly inappropriate forum" test - Whether continuation of proceedings would be vexatious or oppressive - Whether proceedings have a closer connection to Brunei than to NSW - Whether sovereign immunity available to defendants under law of Brunei -Whether alleged contract illegal under Bruneian law - Whether "legitimate personal or juridical advantage" accrued by choice of forum.

CORPORATIONS – Winding up – Set-off – Mutual dealings – Time of receiving credit – Notice of insolvency – Contingent debt in respect of mutual dealings arising from option granted by plaintiff in contract entered into prior to commencement of plaintiff’s administration – Option characterised as a conditional contract for sale and purchase – Option exercised by defendant after commencement of winding up – Held that contingent credit received when contract entered into, not when option exercised – Held that defendant had no notice of plaintiff’s insolvency at time of receiving credit – Consideration of purpose of s 553C of the Corporations Act – Held that defendant entitled under s 553C of the Corporations Act to set off moneys, payable by it pursuant to exercise of option, against moneys owed to it by plaintiff. - (Cth) Corporations Act 2001, s 553C

Succession. Family Provision. Claim by adult daughter. Financial and material circumstances of Plaintiff. Estrangement between Plaintiff and Deceased. Plaintiff seeks an amount sufficient to purchase a residence. Plaintiff not so entitled.

Corporations Law. Application under s459G of Corporations Act to set aside statutory demand. Discussion of Graywinter principle. Demand varied.

Contract for sale and purchase of land and business – second mortgage security on real property – first and second defendants registered proprietors of security property – registration of mortgage – indefeasibility of title – default under mortgage by purchaser – plaintiff claims for possession of security property – forgery by first defendant of second defendant’s signature on mortgage documents – whether plaintiff complicit in forgery – false attestations by third defendant on mortgage documents – false representations – duty of care – whether plaintiff entitled to succeed in respect of claim against second defendant in respect of forged mortgage documents – director of plaintiff aware of forgery – registration as regard second defendant procured by fraud – indefeasibility of title defeated – competing versions of facts – cross-claim by first defendant against plaintiff – onus of proof not discharged

Appeal decision of Local Court Magistrate - payment of debt

Criminal Law - Ongoing drug supply of cocaine - whether manifestly excessive.

CRIMINAL LAW: Application for leave to appeal against sentence - aggravated car-jacking and malicious wounding - applicant already serving sentence for earlier offence - young offender - troubled background but prospects of rehabilitation - special circumstances - totality

Criminal Law - Offences - conspiracy under the Criminal Code (Cth) - the offence the subject of the conspiracy had as one of its fault elements recklessness - whether such a conspiracy bad at law - Criminal Liability - whether under the Criminal Code (Cth) a person can agree with another to commit an offence with a fault element of recklessness - relationship between offence of conspiracy under the Criminal Code (Cth) and at Common Law - Sentence - Crown Appeal - whether sentence imposed manifestly inadequate - relevant considerations in sentencing for a conspiracy to money launder - relevance of knowledge of the provenance of the money dealt with.

COURTS AND JUDGES – judgments and orders – statement of reasons for decision – duty to give – extent of duty – expert evidence – dispute between experts – whether trial judge gave adequate reasons for his decision to accept in its entirety the evidence of one expert over another – the incorporation into a judgment of a party’s submissions without recounting them (on the basis that the trial judge has accepted those submissions) is unsatisfactory. D

CORPORATIONS – Investigations under way – Plaintiff seeks appointment of receivers or alternatively freezing orders to preserve assets – Corporations Act s1323 – Whether it is “necessary or desirable for the protection of aggrieved persons” that order is made – Whether any “alternative or lesser order” can be made under s1323(1) – Whether freezing order is an order under s1323 – Disclosure orders sought by plaintiff subject to right to claim privilege or exposure to penalty – Whether protection against self-incrimination adequate.

TORTS - personal injury - single vehicle collision in conditions of heavy rain - liability of road authority.

TRUSTS AND TRUSTEES– Charitable trusts – Trust property given for convalescent home – Whether trust purposes have failed – Whether cy-prés scheme should be settled

[CONTRACT] - Claims by plaintiff for outstanding fees for provision of architectural services to the defendants - Claim by defendants in cross-claim that plaintiff was in breach of retainer and that it was negligent in the provision of its services - [MISLEADING OR DECEPTIVE CONDUCT] - Claim by defendants in cross-claim that plaintiff's conduct was misleading or deceptive - Whether alleged representations made - If made, whether false

DAMAGES – General principles – future economic loss – superannuation - whether award made in previous proceedings inclusive of superannuation – not inclusive of superannuation - TORTS – The law of torts – generally – joint or several – tortfeasors – contribution –liability in respect of the same damage – where proceedings against employer commenced prior to introduction of Civil Liability Act 2002 – where third party joined to proceedings after commencement of Civil Liability Act 2002 – applicability of Civil Liability Act – Workers Compensation Act 1987 NSW, s 151Z(2) – Civil Liability Act 2002, s 19(3) - WORKERS' COMPENSATION – Alternative rights against employer and/or third parties

APPEALS – interlocutory injunction pending hearing of appeal – principles on which granted

CONTRACTS - General Contractual Principles - Waiver - Conditional contract for sale of land to defendants with rights to rescind if condition not met by specified date - Plaintiff purported to rescind after time had expired - Whether by continuing appeal against refusal of local council to approve plan of subdivision of the land the plaintiff had elected to keep the contract on foot - CONVEYANCING - Land Title under the Torrens System - Caveats against Dealings - Caveat lodged with honest belief, based upon reasonable grounds, that caveators had a caveatable interest - No evidence that opinion had changed - Whether plaintiff entitled to damages under the Real Property Act 1900, s 74P(1)(c) because of alleged unreasonable stand in commercial negotiations for withdrawal of the caveat to allow refinancing

APPEAL – Local Courts Act s 73(2) – decision of Assessor – whether denial of natural justice or excess of jurisdiction - failure to give reasons – question of appropriate relief

Appeal decision of CTTT - service of notice of termination

COURTS AND JUDGES – bias – disqualification – apprehended bias – whether prior professional relationship between judge, when counsel, and counsel in proceeding will disqualify judge where counsel in proceeding expresses a view that judge ought not hear case.

Extension of time - s 60C, Limitation Act 1969 - police officer, psychological injury

EQUITY – General principles – Mistake – No relevant mistake – Grounds for rectification or setting aside of contract not established.EQUITY – Unconscionable Conduct – Plaintiff under no disability or significant disadvantage of which defendant took advantage. - CONTRACTS – Unjust contracts – When contract “unjust” – Where terms of contracts not reasonable due to their effect – Unreasonableness of terms foreseeable at time of contracting – Consideration of public interest – Plaintiff transferred house and all household furnishings, and goods to his daughter, to ensure sons could have no claim after his death – Plaintiff entitled to live on property provided he paid all outgoings – Defendant paid arrears of rates – Defendant not liable to pay for repairs – Plaintiff unable to pay outgoings and repairs needed to keep the property in habitable condition - Held that contracts unjust notwithstanding that defendant innocent of any improper conduct – Plaintiff to repay defendant her expenditure on the land – Defendant entitled to a charge to secure repayment. - (NSW) Contracts Review Act 1980, ss 7, 8 and 9(NSW) Residential Tenancies Act 1987, ss 3 and 6(1)(a)

CRIMINAL LAW – sentence appeal – malicious damage to property by fire - objective gravity of offence – whether sentencing judge had proper regard to offender's limited degree of participation in crime – whether sentence imposed manifestly excessive

CRIMINAL PRACTICE & PROCEDURE - misstatement of maximum penalty - whether material error - whether fresh evidence then admissible - re whether some other sentence warranted in law (s6(3)) - suggested inconsistency in decisiions of this Court - no inconsistency - evidence admissible - re-sentence.

SENTENCE – Guilty Pleas – Utilitarian value – Where sentencing judge rejected concession by Crown that guilty plea made at first available opportunity – Aggravating Factors – Supply prohibited drug – Whether offence committed as part of a planned organised criminal activity is an aggravating feature when planning is an inherent characteristic

TORTS – negligence – duty of care – respondent’s son injured in an accident on school premises prior to formal supervision – respondent a teacher at the school – whether the respondent owed his son a duty to take reasonable care not to expose him to a risk of harm when he dropped off his son at school earlier than was ordinarily the case on the date of the incident – breach of duty – respondent knew, or should have known, that the system of ad hoc supervision during the time he dropped off his son at school was inadequate – whether the risk of harm required to be taken into account by the school differed from that which the respondent had to consider – whether, if the respondent did owe his son a duty of care, his decision to leave him at school at a time when there was only ad hoc, informal supervision was, in all the circumstances of the case, and taking into account the practical realities of everyday living, reasonable. D

PROCEDURE – Judgements and orders – Amending, varying and setting aside – application to set aside order — where order had consequences in related proceedings — defence of res judicata or estoppel - PROCEDURE – Judgements and orders – Amending, varying and setting aside – inherent power to amend to give effect to intention of court – where an order has unintended consequences – relevant intention is objective intention of Court - PROCEDURE – Judgements and orders – Amending, varying and setting aside – Correction under slip rule - Uniform Civil Procedure Rules 2005 (NSW), r 36.17 – where order erroneously resolves an issue not adjudicated upon - PROCEDURE – Courts and judges generally – Judges – Disqualification for interest or bias – capacity of judge to hear application to amend order s/he has made - WORDS AND PHRASES - “dispose”, “error”, “correction”

INSURANCE – Disability income benefit policy – Plaintiff sought suspension of premium payments – Defendant cancelled policy – Reinstatement sought – Whether representations alleged by plaintiff were made by employees of defendant – Dispute decided by Financial Industry Complaints Service in favour of plaintiff – Whether determination enforceable between plaintiff and defendant as contract. - ESTOPPEL – Whether defendant estopped from asserting policy lapsed. - COSTS – Proceedings transferred from District Court – Plaintiff succeeds on new cause of action – Whether defendant should have costs of District Court proceedings.

Criminal Law - Sentence for Murder after plea where the offender is a young man with severe mental illness - relevance of standard non-parole period in such a case.

Family Law. De facto relationship. Conduct of farming enterprise by parties. Respective contributions of parties. Contributions of applicant as homemaker and parent. Aquisition of various pieces of real property. Court should not have regard to present or future needs of applicant.

Criminal law – Crimes (Serious Sex Offenders) Act 2006 (NSW) – application for continuing detention order – nature of the statutory standard prescribed as to the probability that a particular offender is “likely” to commit a further serious sex offence - s.17(3) of the Act – the construction of s.17(3) and the nature of the test under that provision – judgment of the Court (Bell J in Attorney-General of NSW v Tillman [2007] NSWSC 605 in relation to the construction of s.17(3) followed and applied – recommendations made for the administration of appropriate therapeutic and other assistance to assist the defendant’s rehabilitation, that being one of the objects of the Act and for the development of a management plan for the future release of the defendant

ADMINISTRATIVE LAW – procedural fairness – failure before making order to provide materials on which application for order is based – failure to serve with the order a copy of the material on which the application for the order was based – material incapable of supporting making of order. JUDICIAL REVIEW – satisfaction of justice – material reasonably capable of satisfying precondition to exercise of power. LIQUOR ACT - Order for short-term closure of licensed premises – Liquor Act 1982 (NSW) s104A – Liquor Regulation 1996 (NSW). WORDS AND PHRASES – “necessary” – Liquor Act s104A.

CORPORATIONS LAW - voidable transaction under Pt 5.7B Corporations Law - business of either company A or company B sold - proceeds of sale paid to creditor of director of both companies - claim that a Transaction as defined which included the payment was a voidable transaction - whether one or other company party to the Transaction - whether a Transaction of the company - by majority, was a Transaction of the company - was voidable transaction. EQUITY - first limb of Barnes v Addy - whose business was it - whether loan to director who then paid creditor - whether breach by director of fiduciary duty owed to either company - whether receipt of trust property by creditor - whether creditor had knowledge of breach of fiduciary duty - business was business of company A - not loan to director - proceeds of sale to be held by company B for company A - breach of fiduciary duty owed to both companies - company B could not account to company A - money put out of reach of company A - disregard of interests of creditors of both companies - creditor knew business was business of company A and that payment meant company B could not account to company A and that money put out of reach of company A - also had knowledge from which honest and reasonable man would have thought was risk of prejudice to creditors - had knowledge of breach of fiduciary duty.

CRIMINAL LAW - trial by jury - indictment includes count of defrauding the Commonwealth - element of deprivation - Crown to prove that Commissioner of Taxation had an arguable case to put that private binding rulings and advance opinions were wrong and that risk to revenue was such that Commonwealth was deprived of something of value - issue for jury to determine as element of deprivation - defence tenders, without objection, six decisions of the Federal Court of Australia concerning fringe benefits tax and deductibility issues - Crown tenders four additional decisions - defence objection to Crown tender - in circumstances of trial, four decision relevant and admissible - objection overruled

CIVIL PROCEDURE – discovery – application for extension of time to comply with order for discovery

CRIMINAL LAW – appeal against sentence – intimidation with intent to cause victim to fear mental harm and larceny – whether trial judge erred in making findings of fact not supported by evidence or inconsistent with evidence – whether trial judge erred in failing to consider special circumstances in sentencing - whether sentences manifestly excessive

CRIMINAL LAW – Jurisdiction, Practice and Procedure – Verdict – Unanimous and majority verdicts – Preconditions for the application of s 55F Jury Act 1977 (NSW) where a jury cannot agree – Appropriate directions to be given to a jury unable to agree about the availability of a majority verdict – Appeal upheld - CRIMINAL LAW - Jurisdiction, Practice and Procedure – Child witnesses – Cross-examination of child complainant unfair – Inconsistencies between child witnesses within normal bounds - CRIMINAL LAW – Appeal and new trial – Particular grounds – Unreasonable or insupportable verdict – - CRIMINAL LAW – Appeal and new trial – Power to order new trial or quash conviction and direct entry of judgment of acquittal – Where sentence substantially served by time of appeal – Registration requirements following conviction for child sexual offences a factor in decision whether to order a new trial

CRIMINAL LAW - Sentence - Crown appeal - knowingly taking part in supply of large commercial quantity of ecstasy - related to Crown appeal in R v Stankovic - whether sentence manifestly inadequate - whether "bottom-up" approach to sentencing appropriate.

CONTRACT – construction – settlement of claim – whether release from further liability – scope of dispute resolved to be understood by reference to context of agreement.WORKERS COMPENSATION – payment of agreed sum – whether agreement limited to specific period – additional claim made for further period – whether employer could contract out of liability under the Workers Compensation Act 1987 (NSW) - Workplace Injury Management and Workers Compensation Act 1998 (NSW), s234.

PRACTICE AND PROCEDURE – Practice Note SC Eq 3 – Whether amended commercial list response should be struck out – Whether plaintiff entitled to summary judgment – No question of principle.

Administrative law – referral of questions of law by the Administrative Decisions Tribunal of New South Wales to the Supreme Court – s.118 of the Administrative Decisions Tribunal Act 1997 (NSW) – no valid referral made – purported order made by a single member of the Tribunal, not by an Appeal Panel, as required – whether questions purportedly referred otherwise would fall within s.48 of the Supreme Court Act 1970 – one such question at least would fall within that section and so assignable under that Act to the Court of Appeal

JUDGMENTS AND ORDERS – Enforcement – Garnishment – Form of Garnishment Notice – whether invalidated by failure to particularise debt sought to be attached – held, it is not – debt due or accruing – whether paid prior to date of attachment – where garnishee had effectively assigned third party debt to judgment debtor – held, debt paid - Discretion – Private International Law - whether local order for payment prevails against supervening foreign administration – held, it does - whether order for payment should be made where foreign scheme of arrangement pending at date of attachment – held, it should not. CORPORATIONS – external administration – where corporation is subject of foreign scheme of arrangement – whether local garnishment proceedings are an “external administration matter” – held, they are not. EVIDENCE – Privilege – litigation privilege – communications between party’s solicitor and expert witness – whether entitled to litigation privilege – where witness’ report served – whether privilege in anterior communications including letter of instructions waived – held, privilege in associated documents is not waived by service or tender of report alone.