Cases and authorities

LOCAL ENVIRONMENT PLAN – Interpretation – Whether building height provisions are inconsistent – North Sydney Local Environment Plan 2001 cll 28A, 28D, 29, 30, 31, 32 - LAND AND ENVIRONMENT COURT – Appeals – Apprehended bias – Where Senior Commissioner expressed strong opposition to the application – Whether matter should be remitted to a Commissioner other than the Senior Commissioner

CAVEATS – FORM – Application to extend caveat – whether “caveatable interest” sufficiently describes interest claimed. - EQUITABLE CHARGE – Whether words of agreement created present equitable charge.

DEFAMATION - defences - justification - whether defamatory imputations true - DEFAMATION - defences - whether defamatory imputations published on occasions of qualified privilege - DEFAMATION - defences - whether defamatory imputations published on occasions of qualified privilege - whether publications malicious - DEFAMATION - damages - interest.

Criminal Practice and Procedure - sentencing - murder - guilty plea.

VALUATION OF LAND – method of valuation – where land value to be determined on assumption that improvements on the land had not been made – meaning of “improvements” – where buildings on land not suitable for highest and best use of land – whether buildings improvements – whether improvements have to add value to land by reference to its highest and best use – whether additions to land that reduce value are improvements – Valuation of Land Act 1916 - STATUTES – construction – principles of construction – whether court limited to selecting from constructions presented to it by parties – construction by reference to context in which words used – construction by reference to history and purpose of provision – construction by reference to ordinary English meaning of words – construction by reference to whole instrument – construction by reference to legislative history – whether statute should be given construction that would be simplest to apply - STATUTES – construction – meaning of “improvements” to land – Valuation of Land Act 1916 - APPEALS – appeal from Land and Environment Court to Court of Appeal – class 3 proceedings – where appeal limited to questions of law – mixed question of fact and law – whether wrong legal principle applied – Land and Environment Court Act 1979 - WORDS AND PHRASES – “improvements”

CAVEATS – LEAVE TO LODGE FURTHER CAVEAT – Whether sufficient evidence to support prima facie case of caveatable interest.

CRIMINAL LAW - jury trial - application by juror to be discharged from jury during trial - financial concerns and domestic stress - duty of jurors to community - relevant factors on discharge application - expectation of some financial and personal hardship as part of jury service - application refused

Sentence appeal - sentencing on the basis that other offences committed - no evidence of other offences - offence committed 35 years ago - range of conduct proscribed by s 76 Crimes Act 1900 not taken into account - offence not in mid-range.

CORPORATIONS – Corporations Act 2001 (Cth) Pt 5.9 - examination summonses – application by eligible applicant for examination of persons about a corporation’s examinable affairs – application for examination summonses to be supported by affidavit – affidavit not available for inspection except so far as court orders – court must be satisfied claimants have arguable case that examination summonses issued for an improper purpose before inspection allowed – whether trial judge erred in finding claimants had not shown arguable case of improper purpose

NEGLIGENCE - Occupier's Liability - no question of principle.

EMPLOYMENT LAW - JUDICIAL REVIEW - Claim of bad faith by judges of Industrial Relations Commission of NSW - Claim not made out.

Appeal - Appeal Panel - Administrative Decisions Tribunal - waiver of legal professional privilege

CONTRACT [129]- Breach of contract- Plaintiff lent $1.1 million to defendant companies in eight tranches- Moneys to be used for property development- Directors of defendant companies agreed to use best endeavours to secure second mortgages for plaintiff- Mortgages never secured- Promise to use best endeavours means obligor must do all that is reasonable in the circumstances to bring about contractual object- Directors did nothing to bring about required result- Held liable. TRADE & COMMERCE [1071]- Consumer protection- Misleading or deceptive conduct- Defendant companies represented to plaintiff that certain development projects were progressing well- Three individual defendants promoters of companies- Two of them left everything to the third to arrange- All knew the third's methods of fund raising- Representations a cause of plaintiff's loss- Claim under ss 52 and 75B of Trade Practices Act made out against all three individuals.

REAL PROPERTY – easements - whether right of way to pass and repass permits use of servient tenement for fire egress in satisfaction of development consent - whether court should grant declaration and injunction restraining use for fire egress passage - whether right of way should be extinguished under s 89(1)(a) in anticipation of completion of building - whether right of way should be modified under s 89(1)(c) - whether court has power under s 89(1)(c) to modify right of way for benefit of dominant owner by permitting use for fire egress passage

TORT- NEGLIGENCE - Duty of care - Content of duty - Relevance to content of duty of negligence or other fault of plaintiff - Helicopter crashes into unmarked power lines - Pilot found to have been engaging in unlawful low-level flying - Helicopter owner sues power company - Whether conduct of pilot relevant to existence or content of duty of care, or to voluntary assumption of risk, contributory negligence, or causation. D

INSURANCE – contract of life insurance – non-disclosure of medical condition – whether insurer would not have been prepared to enter into a contract of life insurance on any terms with the insured had he complied with his duty of disclosure - AVOIDANCE OF CONTRACT OF LIFE INSURANCE – whether insurer entitled to avoid contract of life insurance – Insurance Contracts Act 1984 (Cth) – s 29(3) –whether insurer must prove s 29(3) notional decision as at the date of the contract it seeks to avoid or whether it can avoid contract if it proves it would not have made a decision at that date but would have deferred consideration of the proposal and later would not have been prepared to enter into a contract of life insurance on any terms with the insured

Family Provision - Application for a Capping Order on the matter of costs awarded to the Plaintiff in respect of a small estate - Legacy granted for the Plaintiff of $25,000 and the costs capped at $25,000

Dissolution of partnership - Rate of interest to be applied to moneys held by one partner after dissolution and before accounts taken

DEFAMATION – undertakings “until further order” – application by defendant to be released from undertakings – principles to be applied on such an application – whether governed by principles of general application or constrained by the particular nature of the undertakings given in the face of a threatened defamation – whether significant change of circumstances established

CRIMINAL LAW – interim order for forensic procedures – plaintiff patient in psychiatric unit – patient in psychiatric unit reports assault and rape by plaintiff – plaintiff incapable person by reason of psychiatric condition – plaintiff unable to consent to forensic procedures – purposes of forensic procedures – purposes of interim orders – statutory limit on use to be made of material obtained from forensic procedures carried out after interim order – no requirement that order specify time, place, or impose time limit on carrying out of forensic procedures – absence of interview friend or legal representative – premature application to Supreme Court

Purported termination of franchise agreement - Asserted bases of breach examined and rejected - Implied obligations of good faith - Content of duty - Breach of duty

CRIMINAL LAW – Crown appeal against inadequacy of sentence – whether suspension of full time custodial sentence in absence of special circumstances appropriate for offences involving supply of prohibited drug – whether offender’s subjective features amounted to special circumstances warranting the imposition of some other sentence – subjective features include offender’s youth, previous good character, unlikelihood of re offending, contrition, early admission of guilt, voluntary cessation of criminal activity and confession to offence not otherwise likely to have been detected

Appeal - Local Court Magistrate's decision - weight given to expert evidence

Succession. Family Provision. Claim by adult foster daughter. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Competing claims of other beneficiaries. Whether any order for provision should be payable out of residue or out of some other part of estate.

TORTS - negligence - motor vehicle accident - no question of principle

CRIMINAL LAW AND PROCEDURE - SENTENCE - ACCESSORY AFTER FACT TO MURDER - SCOPE OF RESPONSIBILITY - ASSISTANCE TO PRINCIPAL FOR TWO DAYS UNTIL SURRENDER TO POLICE - RELATIVES OF DECEASED ARE NOT VICTIMS OF ACCESSORY CRIME FOR PURPOSE OF MAKING VICTIM IMPACT STATEMENTS - ASSESSMENT OF CULPABILITY

PRACTICE AND PROCEDURE – STRIKE OUT – Defendants seek dismissal of Summons on ground that no proper defendant is joined and on grounds that proceedings are barred by privative provisions of Part 6 Consumer, Trader and Tenancy Tribunal Act.

Criminal Law - Crown Appeal - Criminal Appeal Act 1912, s 5F(3A) - Exclusion of evidence - s 137 Evidence Act 1995 - Evidence to be considered in the Crown case "taken at its highest" - Reliability and weight not relevant to determination of probative vaue - Judgment pursuant to s 137 to be based upon evidence on the voir dire - Error of trial judge in assessing probative value of evidence according to findings of fact unsupported by evidence on the voir dire and against the weight of that evidence - No unfair prejudice in circumstances where evidence established no more than allegations of taxation offences against defendant - Misapplication of Edwards v The Queen (1993) 178 CLR 193.

CONTRACT – Illegal contracts – as contrary to statute – contravention of Code enforced by statute – requirement to provide information prior to entry into contract – information not provided - STATUTES – Interpretation – rules of construction – particular rule – operation of common law rule on unenforceability of illegal contracts – whether statute negates operation of common law rule – whether statute prohibits the making of the contract – Franchising Code of Conduct, cl 11 – Trade Practices Act 1974 (Cth), s 51AD

CONTRACTS – construction – whether the contract was an agreement for lease – whether the appellants were required to have an interest in, or a contractual right to acquire an interest in, the land for the contract to be one “for…the disposition of land or any interest in land”, as that phrase is understood in s 54A(1) of the Conveyancing Act 1919 (NSW) – part performance – whether O’Rourke v Hoeven [1974] 1 NSWLR 622 and Powercell Pty Ltd v Cuzeno Pty Ltd (2004) 11 BPR 21,429 were wrongly decided – whether the ‘fusion’ doctrine allows for the remedy of common law damages to be granted based on part performance of a contract otherwise struck down by s 54A(1) of the Conveyancing Act – unconscionability – whether it was unconscionable for the appellants to rely upon s 54A(1) by reason of their repudiation of the contract. - TRADE PRACTICES – misleading or deceptive conduct – whether, by reason of their agreement to the terms (found by the trial judge as being the ‘elements’) of the contract, the appellants had made representations to the respondents that they intended to comply with the contract and that the contract was, in fact, valid – whether, if such representations were made, the appellants had that intention at the time the contract was made. - COSTS – prolixity of grounds of appeal – 58 grounds of appeal – no decision made on vast majority – Re Minister for Immigration and Ethnic Affairs - Ex parte Lai Qin (1997) 186 CLR 622 applied – no order made on costs of appeal in regard to those grounds that were unnecessary to decide. D

CIVIL PROCEDURE - case management - proceedings for false arrest and imprisonment, malicious prosecution and injurious falsehood - non-compliance by plaintiffs with timetable for directions – amendments to timetable sought by plaintiffs - application by defendants for vacation of impending hearing date - EVIDENCE – access sought to documents for forensic examination – application opposed – new timetable for directions imposed including order for forensic document examination

WILLS PROBATE and ADMINISTRATION - testamentary capacity - testator aged 83 - inofficious dispositions and indications of irrational hostility towards son, Managing Director of testator's family company - medical evidence did not clearly establish definable mental illness but suggested possible early dementia - extended consideration of evidence of testator's conduct, beliefs and attitudes - finding against testamentary capacity - probate to be granted of earlier will - decision on facts.

DEVELOPMENT CONSENT – Validity – Delegation of Council powers– Power to determine a development application – Whether a delegation of power to approve a particular development application is a valid delegation – Whether a delegation to approve a particular development application fettered the delegate’s previously delegated power to determine development applications with respect to that particular application – Local Government Act 1993 s 377 – Environmental Planning and Assessment Act 1979 ss 79C(1), 80(1)

WORKERS COMPENSATION - Appeal – no question of principle.

CONTRACT - EMPLOYMENT - EQUITY - INTELLECTUAL PROPERTY - Confidential information - Restraint of trade - Obligations of employee as to confidential information after termination of employment - Whether subject to implied term in contract - Whether dependent on equitable rules concerning confidentiality - Categories of confidential information - Trade secrets - General know-how of employees - Effect of explicit contractual restraint - Corporations Act 2001 (Cth) s.183 - Moulding of remedies - Whether permanent injunction excessive.

TORTS - Negligent advice - Purchase of shares in unitholder and trustee of trust with carry forward tax losses and capital profit on sale of hotel - Purchaser seeks advice from accountant/tax expert - Accountant advises that due diligence required if certain advice is to be given - Subsequent letter gives some advice notwithstanding due diligence not undertaken - How such letter would reasonably have been understood - Whether it gave negligence advice - Whether purchase of shares caused by any such negligent advice - Whether accountant liable under the Fair Trading Act 1987, s.68

PRACTICE - Re-opening decisions - Whether denial of procedural fairness - Whether misapprehension of facts or law

Security for costs

Family Provision - Application under Family Provision Act by persons who are part of the household of the deceased - Discussion of Dependency of young children on grandparents or children in the Household - Order for Legacy in one claim and the other claim dismissed

Sentence appeal - aggregate discount for plea of guilty and assistance - no question of principle.

sentencing - multiple offences - need to ensure utilitarian discount is reflected in overall sentence - nature of abstract case for consideration of standard minimum non-parole period.

CRIMINAL LAW - Conviction appeal and Crown appeal against sentence - unlawfully administering an overpowering drug Diazepam with intent to have sexual intercourse - sexual intercourse without consent - 14 year old victim - amendment made to original indictment - whether trial a nullity - directions to jury - whether directions caused jury to confuse the conduct of the appellant with that of his son - whether jury was misdirected on intoxication - whether trial judge unreasonably restrained the appellant’s cross-examination rights - CROWN APPEAL - whether offences involved distinct acts of criminality - failure to accumulate sentences found

TORTS – NEGLIGENCE – liability – duty of care – whether first appellant had breached his duty of care to employee of the respondent – turns on own facts - REMEDIES – DAMAGES – quantification – gratuitous services – past and future domestic care – concept of ‘ordinary give-and-take’ of a marital relationship – whether services provided by injured employee’s spouse were to be classified as services additional to those as part of the mutual give-and-take of marriage – Roads and Traffic Authority (NSW) v Lolomanaia (2001) 34 MVR 249 and Matchan v Lyons (2004) 40 MVR 466 on this issue not followed – damages for provision of care of family pets – requirement of need – whether the injured employee had proved a need for such services – whether the trial judge erred in finding that, as regards one of three periods for past domestic care and future domestic care, the injured employee’s need for domestic assistance was seven hours per week - INTEREST – interest on judgment sum – whether trial judge had taken into account as a discretionary matter the claim made by the appellants that they had been prejudiced in the presentation of their defence on account of the respondent’s delay in bringing proceedings - WORKERS’ COMPENSATION – indemnification – claim for indemnity under s 151Z(1)(d) of the Workers Compensation Act 1987 (NSW) – whether respondent entitled to be indemnified in respect of future payments of workers’ compensation to the injured employee up to an amount of $342,038.72 (being the capped notional damages sum of $577,334.00 minus the difference between $331,188.06 [being workers’ compensation payments that had already been made by the respondent] and $95,892.78 [being an amount time-barred by virtue of s 63(1) of the Limitation Act 1969 (NSW)]) or $246,145.94 (being the notional damages of $577,334.00 minus the payments made of $331,188.06) – whether the statute-barred amount constituted part of the capped damages sum to which the respondent was entitled from the appellants by way of indemnity and should, thus, be deducted. D

CONTRACTS – indemnity clause – construction of indemnity clause – indemnity clause to be construed strictly in the context of the contract as a whole and where ambiguous in favour of proferens – whether Canada Steampship SS principles apply in Australia EVIDENCE – Jones v Dunkel inference – party unable to produce written contract to evidence contractual relationship – trial judge accepted evidence of witnesses as to terms and existence of contract – whether trial judge erred in drawing Jones v Dunkel inference as to existence of contract and alleged terms

CONTRACT - Dispute resolution provision requiring party to negotiate in good faith - uncertainty - severance of uncertain provisions - construction of contracts - requirement to construe so as to allow harmonious operation

Criminal law - applications for separate trials - real risk of positive injustice in joint trial.

PRACTICE & PROCEDURE - amendment to add statute barred cause of action - general power available in cases outside special power - LIMITATION - amendment to add statute barred cause of action