Cases and authorities

INTEREST - s 57 Insurance Contracts Act 1984 (Cth) - date from which it was unreasonable for insurer to have withheld payment on claim - discretionary judgment

EQUITY [96]- Resulting trusts- When arising- Purchase of land- Contributions to purchase price not corresponding with legal interests created by transfer of title- Plaintiff father provides money so that second defendant son can purchase properties- Properties purchased in name of first defendant- First defendant retains properties after son ends their relationship- Plaintiff beneficially entitled to whole of first property and to part of second property. EQUITY [97]- Resulting trusts- When arising- Loan for designated purpose- Failure of purpose- Plaintiff invests in business carried on by first and second defendants- Business sold by first defendant and proceeds distributed to third defendant allegedly in repayment of debt- Debt not proven- Plaintiff beneficially entitled to his share of proceeds of sale.

Interim injunction

PRINCIPAL AND AGENT – Power of attorney – Strict construction of terms – Power to sell and mortgage does not include power to apply funds for benefit of agent - PRINCIPAL AND AGENT – Authority of agent – Scope of actual authority – Act of agent exclusively for benefit of agent not within scope of actual authority - EQUITY – Fiduciary duties – Recipient liability – Where recipient did not know of existence of fiduciary relationship – Knowledge of fiduciary relationship required for knowing receipt - CONTRACTS – Unjust contracts – Contracts Review Act – When contract “unjust” – Independent legal advice – Advice required to be independent of lender – Held not just to order relief against lender who did not know of solicitor’s conflict of interest – Predatory conduct – Held not predatory conduct to know the borrower was at risk of default – Transaction for business purposes – Contracts Review Act not applicable

Set aside registration of foreign judgment - notice of these proceedings - s 7(2)(a)(v)

PROCEDURE [112] – Supreme Court procedure – Procedure under Rules of Court – Evidence – Other matters – Taking of evidence – Video link – Application to court for leave to take evidence by video link – Earlier application refused – No reason shown to depart from earlier decision.

REAL PROPERTY – Torrens title – Easements – Right of carriageway – Construction – where created by s 88B instrument – where easement runs along length of a boundary of dominant land – extent of access points permitted from easement to dominant land – servient owner’s right to gate and fence easement – whether dominant owner entitled to park or remain on easement – Modification and extinguishment – whether obsolete – whether impedes reasonable user of servient land without securing practical benefit to dominant land – whether abandoned – whether can be modified without substantial injury to dominant owner – Obstruction – by gateposts – by gate – by fence – by parking – remedies – mandatory injunction – Trespass – by excessive user – parking by users authorised by dominant owner – remedies – injunction restraining authorising use without ensuring users do not park

INSURANCE [113]- Professional indemnity insurance- Plaintiff council negligently allows development of contaminated land- Predecessor council operated gas works on the site- Policy excludes liability where insured responsible for discharge of pollution- Held contamination of site had ceased to be connected to plaintiff's activities at time claim was made- Defendant insurer cannot rely on exclusion- Whether defendant's liability excused because plaintiff's original settlement of claims defective- Settlement found to be reasonable in circumstances- Defendant liable. LOCAL GOVERNMENT [105]- Liability for torts of predecessors- Amalgamation of councils- Inchoate liability at date of amalgamation- Successor council cannot be made liable for all inchoate claims that may arise against its predecessor. WORDS & PHRASES- "Discharge".

Criminal law - appeal against convictions - indictment containing multiple counts of sexual offences against one complainant - guilty verdicts on first two counts and acquittals on remaining two counts - unsafe and unsatisfactory verdict principles - unreasonable and insupportable verdicts - test for determining unreasonableness of jury's verdict - significance of acquittals when considering unreasonableness of guilty verdicts - prosecution relying on direct evidence of complainant - credibility of complainant - making or failing to make complaint going to credibility of complainant - delay - s.6(1), Criminal Appeal Act 1912

EQUITY – Trusts and trustees – Implied trusts – Resulting trusts – When arising – Property purchased in one name and subsequently transferred to joint names – Where contribution to initial purchase price not established – Where transfer to joint names gives rise to inference that parties intended that beneficial interest of parties is commensurate with legal title – Held that beneficial interest in property commensurate with legal title. - REAL PROPERTY – Statutory trust for sale. - INDEMNITY – Right of surety – Obligations incurred on request and without consideration – Common law right of indemnity – Held that party who requested and received benefit of payment liable to indemnify mortgagor in respect of amount of mortgage proportionate to benefit received. - MORTGAGES – Remedies of the mortgagor – Contribution between mortgagors. - CONTRACTS – Construction and interpretation of contracts – Whether payments of moneys constituted loans or gifts. - (NSW) Conveyancing Act 1919, s 66G

CRIMINAL LAW - APPLICATION FOR AN ORDER UNDER PART 7 CRIMES (APPEAL AND REVIEW) ACT - Whether investigation inadequate - Inaccurate and inconsistent evidence at trial - Evidence not produced at trial - Fresh evidence

MENTAL HEALTH - protected estates - person subject to order under Protected Estates Act - application for revocation brought to the Guardianship Tribunal - whether manager should be directed to pay costs of solicitors for protected person seeking revocation out of her estate

Appeal decision of CTTT - piping - electrical wiring

Family Provision. Applications by children and stepchildren under Family Provision Act 1982 for provision. Orders for legacies. No matter of principle.

Contract for sale of goods (aircraft) - whether eBay "online auction" an auction - whether agreement concluded - whether statements made promissory in nature - implication of a term as to payment of the balance of purchase price within a reasonable period - availability of specific performance

ADMINISTRATIVE LAW – workers compensation – assessment of whole body impairment – deductions for previous injury – appeal against decision of approved medical specialist to Medical Appeal Panel – role and function of the Medical Appeal Panel under s328 – whether procedural fairness was denied – whether Panel failed to give sufficient reasons

S 105 Medical Practice Act — 31 charges for breach of section — plea of guilty — defendant a Chinese herbalist not a registered medical practitioner — had passed himself of as “doctor” on numerous occasions — handed out abortion drug RU486 — general deterrence a significant factor — suspended sentence imposed

APPEAL from magistrate – whether defendant entitled to commence prosecution as a common informer – Criminal Procedure Act 1986, s 14 – whether right to institute prosecution or proceeding for alleged breach of Totalizator Act 1997, s 81(1)(c) expressly conferred by that Act on a specified person or class of persons - Supreme Court Act 1970, s 69 – whether more appropriate to bring appeal under Crimes (Appeal and Review) Act 2001, s 53(3), than seek order in the nature of prerogative relief – interlocutory order – error of law – exercise of discretion to grant leave

Family Provision. Application by widow for further provision. Order for a legacy for a home to be purchased. No matter of principle.

CORPORATIONS - Capital raising - Underwriting agreement - First defendant agreed to underwrite IPO of shares in first plaintiff – Second plaintiff agreed to act as manager and lead broker – Public offering failed – Achievement of spread necessary for plaintiff to be listed on ASX - Whether first defendant breached obligations in relation to spread and to underwrite the issue – ‘Best endeavours’ obligation - Whether first defendant used ‘best endeavours’ to procure spread required by ASX – Delegation of performance to second defendant - whether delegator liable if delegate fails to use best endeavours – agreed extensions of time in accordance with underwriting agreement – Whether further extensions made either formally or on ad hoc basis. - CONTRACT - Whether agreement to extend closing date can be inferred from conduct – Offer and acceptance – Whether ‘best endeavours’ used to do all that could reasonably be done to achieve the contractual object. - ESTOPPEL – By representation – Whether evidence of reliance – Whether any detriment suffered if reliance on any representations - Whether unconscionable for first defendant not to comply with underwriting obligations where agreements allegedly made to extend – Whether plaintiff refrained from enforcing its rights due to alleged representation of extension. - NEGLIGENCE – Duties of care in negligence – Whether second defendant owed to plaintiff duties of care relating to its activities as sponsoring broker – Assumption of responsibility. - DAMAGES – Claim against first defendant for pure economic loss - Whether failure of IPO amounted to a loss to the company of the capital sum not raised – Whether wasted expenditure recoverable – Whether expenditure made or liability incurred on the faith of first defendant’s using its ‘best endeavours’ to achieve spread

Contract for sale of shares and guarantee - whether vitiated by economic duress or unconscientious taking of advantage

Conversion - circumstantial case - title to sue - Jones v Dunkel inference against an absent party - liability of director for conversion of company - damages

CORPORATIONS – Corporations – Statutory demand – Affidavit in support of application to set aside – Whether s 459G(3) of the Corporations Act 2001 (Cth) requires service of exhibits to affidavit within 21-day period – Held it does not. - CORPORATIONS – Statutory demand – Application for order setting aside under s 459G of the Corporations Act – Whether grounds for application raised expressly or by reasonable inference in affidavit in support of application in accordance with Graywinter principle – Held that plaintiff not entitled to rely upon ground which should be reasonably apparent from what has passed between parties but is not raised expressly or by reasonable inference in affidavit in support of application – Where supporting affidavit clearly raised liability of defendant to each of third party and plaintiff arising from costs orders in their favour – Held that plaintiff entitled to rely on grounds that there is a genuine dispute or offsetting claims arising from costs orders in favour of plaintiff and deponent – Plaintiff entitled to set off amount owed to it by defendant pursuant to costs order in favour of plaintiff. - CORPORATIONS – Statutory demand – Application for order setting aside under s 459G of the Corporations Act – Offsetting claim – Whether costs order in favour of third party to statutory demand can be availed of by plaintiff as an offsetting claim, where debt the subject of the statutory demand is owed jointly and severally by third party and plaintiff to defendant – Held that a joint and several obligor who is sued alone cannot raise a set-off to which his or her co-obligor is entitled.

CRIMINAL LAW – Appeal and new trial – appeal against acquittal – where defence of mental illness raised and successful – jurisdiction of court – where statute confers right to appeal against conviction – where no conviction by reason of mental illness – court has no jurisdiction – Criminal Appeal Act 1912, s 5.

Sentence appeal - supplying not less than large commercial quantity of heroin - sentence imposed identical to that previously imposed on co-offender - co-offender later re-sentenced to lower term - no marked disparity

Criminal law - sentencing - intoxication - Aboriginal offender

Sentence appeal - failure to quantify discount for guilty plea - whether sentence manifestly excessive.

SENTENCING - Dishonesty offences - Appellant convicted of conspiracy to cheat and defraud - Appellant not convicted of substantive offence – guilty plea – whether offence nonexistent because statute has overridden common law – effect of Corporations Act 2001 (Cth) s 184(2) and Criminal Code Act 1995 (Cth) Div 11.5 – no intention to displace common law - CRIMINAL LAW – Practice and Procedure - Prosecution – Powers of the prosecution – discretion to select appropriate charge – principle of non interference by courts

Criminal law - sentencing - accumulation of sentences - special circumstances

CRIMINAL LAW – APPEAL AGAINST CONVICTION – Whether jury verdict unreasonable, or cannot be supported– Criminal Appeal Act 1912 s 6(1) – Use of opinion evidence regarding meaning of allegedly coded language in conversations between co-accused – APPEAL AGAINST SENTENCE – Nature of role of appellant in drug transaction relative to that of co-offender – Whether sentencing manifestly excessive

PROCEDURE – Costs – security for costs – for costs of appeal – for unpaid costs of matter at first instance

COSTS – security for costs – discharge of order for security by trial judge following proceedings – order of discharge of security stayed – whether stay of discharge should continue until determination of appeal

Sentencing appeal - plea of guilty to being knowingly concerned in the supply of cocaine - applicant's role in offence overestimated by sentencing judge - sentence above normal range for this offence - sentence manifestly excessive

Personal injury, fall, liability, damages, insurance policy

NEGLIGENCE - Melbourne/Voyager collision claim for damages - breach of duty admitted - issue of causation - PTSD and alcoholism - recovery medical expenses for clinics re alcoholism - future career in Navy - discount to reflect probabilities - vicissitudes.

CRIMINAL LAW - jury trial - application by juror to be discharged from jury during trial - mental illness of juror affecting ability to serve as juror - if juror discharged, whether trial should proceed before jury of eleven under s.22 Jury Act 1977 - juror discharged - trial to proceed before jury of eleven

DEFAMATION – retrial – article published in the Sydney Morning Herald – plaintiff lawyer – imputation that plaintiff was struck off for shoddy financial legal advice – defences of substantial truth and public interest raised – contextual imputations pleaded – polly peck defence – injurious falsehood – malice – damages

Family Provision. Application by daughter of first marriage where whole estate passed to third wife. Order for small legacy.

Succession. Family Provision. Claim by three infant children. Financial and material circumstances of Plaintiffs. Whether Plaintiffs have been left without adequate provision for their proper maintenance, education and advancement in life. Testimentary provisions of Deceased in favour of Plaintiffs. Deceased after making his will dealt with assets so that they passed to Defendant, and in consequence Plaintiffs received nothing. Notional estate. Prescribed transactions. Competing claim of Defendant. - Practice and Procedure. Costs. Excessive costs incurred by each party. Capping order. Costs inflated by affidavits irrelevant and objectionable in form. Usual costs orders in Family Provision claims. Present litigation in nature of adversarial proceedings.

Civil procedure - pleadings - injurious falsehood - application to strike out.

Defamation - qualified privilege - motive to injure plaintiff - proof of malice - no defence

MORTGAGE - Consumer Credit Code - default notice not given - default judgment set aside.

Family Provision. Claim by same sex partner. De facto relationship had terminated by date of death but plaintiff entitled as she had been part of household and dependent upon the deceased. Legacy provided for plaintiff.

CONTRACT – novation of contract of sale – whether new purchaser substituted for original purchaser under sale agreement - whether obligations of the guarantor of the original purchaser discharged by novation or substitution – construction of contract – commercial purpose of contract CONTRACT – construction – where ambiguity in express terms of contract – court to have regard to commercial purpose and context of contract - meaning of “serviceable condition” of aircraft – Civil Aviation Act 1988 (Cth) – Civil Aviation Regulations 1988 (Cth) TRADE PRACTICES – misleading and deceptive conduct – oral representations as to condition of aircraft – Trade Practices Act 1974 (Cth) s 51A, s 52 – Fair Trading Act 1987 (NSW) s 41

CRIMINAL LAW – APPEAL – Crown Appeal – armed robbery of bank – non-applicability of R v Henry guideline – double counting of discount on plea of guilty – manifest inadequacy.

CRIMINAL LAW – SENTENCING – application for leave to appeal against severity of sentence – assault with intent to rob whilst armed with an offensive weapon – plea of guilty – subjective circumstances – finding of special circumstances – mitigating/aggravating factors – Henry guideline – guideline judgment incorrectly applied by trial judge – whether necessary to establish exceptional circumstances in order to depart from guideline sentence – whether sentence manifestly excessive taking into account applicant's age and subjective circumstances – sentence less severe warranted

Sentence appeal - pleas of guilty to sexual offences committed against children whilst outside Australia - ss 50BA(1) and 50BC(1)(a) Crimes Act 1914 (Cth) - whether undue emphasis upon specific deterrence - sentence not manifestly excessive.

CONTRACTS – Oral variation of standard form contracts for advertising – Written contract defines silence as acceptance of provided advertising proofs – Oral agreement on condition precedent to wait for “go ahead” – No agreement as to nature of “go ahead” to be given – Whether the statement “will confirm others later” when accepting one set of advertising proofs constitutes “go ahead” for “other” sets of advertising proofs – Whether silence after advertising proofs received constitutes “go ahead” – EVIDENCE – Whether admissions in a defence to a cross-claim can operate as informal admissions once the defence is superseded without objection by the filing of an amended defence