Cases and authorities

Family Provision. Application under Family Provision Act by a stepson. Order for small legacy. No matter of principle.

EQUITY [384] – Equitable remedies – Specific performance – Particular contracts – Guarantee and indemnity - INTEREST [5] – Recoverability of interest – Award of interest as damages – From commencement of proceedings to judgment – General principles – “Proceedings for the recovery of any money” - PROCEDURE [103] – Supreme Court procedure – Procedure under Rules of court – Offer of compromise – Refusal – Entitlement to costs on indemnity basis.

CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - Lot and car space purchased off plan - Either party might rescind if alteration of position, dimensions or area greater than 5% - Further clause enabling purchaser to rescind after registration of strata plan if amendments or additions adversely affected use of property other than minor - Change in location of car space from one floor to another and one wall to another - Whether first right of rescission limited to changes in physical structure and second right limited to changes in draft strata plan - Whether plaintiff entitled to rescind before registration of strata plan - Whether first defendant terminated the contract for the plaintiff's repudiation

Criminal Practice and Procedure - sentencing - murder - joint criminal enterprise to inflict grievious bodily harm - contract attack - extreme culpability - worst category of offence of murder - life sentence.

Sentencing - offences of murder, attempted murder and manslaughter - Manslaughter by way of provocation - offender subjected to blackmail and threats by deceased over many years - offender sets fire to premises in which deceased's young children are asleep - one child dies - offender rescues other child - Murder - whether it falls within "worst category of offence" - whether maximum penalty should be imposed

CONVEYANCING [155]- Torrens title- Exceptions to indefeasibility- Fraud- First defendant buys whole of plaintiff's property- Agrees to sell one lot back to plaintiff- Later mortgages property to second defendant- Whether this a fraud on plaintiff such as to deny second defendant's indefeasible title- Second defendant never undertook to respect plaintiff's interest- No fraud. CORPORATIONS [1705]- Liquidators- Winding up of second defendant- Plaintiff cannot prove in winding up- Liquidators should nonetheless discharge mortgage over plaintiff's lot- Rule in Ex parte James applied. ESTOPPEL [29]- Estoppel by convention- Not proven- No common assumption that plaintiff's lot quarantined from mortgage- No evidence of plaintiff's detrimental reliance on assumption.

Limitation defence - extension of time - whether plaintiff ought to have discovered his PTSD - nature of gateway test - whether actual prejudice - whether existence of presumptive prejudice prevented a fair trial

CRIMINAL LAW - Sentence - Murder - Guilty plea - Reduction of sentence for assistance to authorities - History of drug abuse - History of mental disorders - Agreed statement of facts contradicted by supplementary material

PROCEDURE – Application for summary dismissal of proceedings sought on basis that not seriously arguable that defendants owed fiduciary duties to plaintiff or breached duties – Whether seriously arguable that imposition of certain statutory duties imposes fiduciary duties – Consideration of features of relationships which may give rise to fiduciary duties – Held that seriously arguable that, within statutory framework, voting members of a council who exercise voting rights may stand in fiduciary relationship with the council – Characterisation of duties as fiduciary or equitable – Held that characterisation of duties as fiduciary or equitable immaterial to question whether such duties owed and enforceable in equity – Application for summary dismissal of proceedings sought on basis that not seriously arguable that individual defendants’ positions distinguishable from position of companies found not to be liable for knowing receipt of trust funds in separate but related proceedings – Where separate proceedings did not determine knowledge of individual defendant parties to these proceedings – Where evidence to be adduced in present proceedings may not be the same evidence as that produced at separate proceedings – Held that it is seriously arguable that defendants may be liable on basis of matters alleged in present proceedings – Application dismissed. - PROCEDURE – Application to strike out amended points of claim – Whether lack of particularity in pleadings justifies order striking out amended points of claim – Held that pleading pleads material facts, discloses arguable cause of action and makes clear to the defendant the case the defendant has to meet – Application dismissed. - PROCEDURE – Application for stay of proceedings until certain other persons added as necessary parties – Whether all voting members of council must be joined in accordance with principle that all trustees are necessary parties in suit complaining of breach of trust – Held that where liability of voting member depends upon his or her individual intention or knowledge it would be inappropriate to join all voting members regardless of their intention – Application dismissed.

PROCEDURE [80] – Supreme Court procedure – Jurisdiction and generally – Other matters – Application to transfer proceedings to Local Court – Civil Procedure Act 2005 s 146 – Proceedings must be shown to be within jurisdiction of Local Court.

Review of decisions of Registrar's Delegate and Approved Medical Specialist

Alleged error on the part of the Registrar - Delegate and Appeal Panel - onus of proof not discharged - discretionary relief

Torts - Personal injury - Medical negligence - Birth injury.

Appeal from decision from Consumer Trader and Tenancy Tribunal - refusal of application for adjournment - whether procedural unfairness - costs.

NEGLIGENCE - child drowned in lagoon - claims for nervous shock by parents against local council - allegation of failure to have appropriate warning sign - content of duty of care - whether breach of duty established - causation.

Architect’s remuneration — architect’s professional negligence — State Environmental Planning Policy 5 — Corporations Act s 131

PROCEDURE [117] – Supreme Court procedure – Procedure under Rules of court – Reference by Court to referee – Procedure when report considered by Court.

CONVEYANCING - Land Titles under the Torrens System - Indefeasibility of Title - Vendor finance - Ageement by Vendor, 1st defendant, to transfer title to plaintiffs upon payment of deposit by instalments - Failure to do so - Purchasers in default of instalment payments - Vendor transfers lots to 2nd defendant who becomes registered proprietor after plaintiffs' caveat lapses - 10 of 14 lots transferred to purchasers for value without notice - 2nd caveat over remaining 4 lots lodged - Plaintiffs seek to set aside transfer of 14 or, alternatively, 4 lots on basis of the fraud exception to indefeasibility of title under the Real Property Act 1900, s 42(1) - Submitted that transferee did not exist or, if she did, she took the transfers for no other purpose than to thwart the plaintiffs' interests

CRIMINAL LAW - four counts sexual intercourse and one count aggravated indecent assault - child complainant - inconsistency in evidence of complainant’s grandmother and father - reliability of complainant’s evidence - whether jury verdict unreasonable and inconsistent - whether error in admitting hearsay evidence - directions on use of video evidence

CRIMINAL LAW - Conviction and sentence appeals - importation of MDMA - circumstantial case - whether Crown had proved the elements of the offence irrelevant parts of record of interview blanked out - whether entire interview should have been excluded - whether the Crown and trial judge’s summing up was distorted and prejudicial - whether sentence manifestly excessive

CRIMINAL LAW - identification evidence - photographic identification - com-fit photos - verdict not unreasonable

NEGLIGENCE – Breach of duty – Contributory negligence – Assessment of damages – Where appropriate to apply a “cushion” or “buffer”

NEGLIGENCE – duty of care – duty of occupier and licensee of hotel to patrons on licensed premises – duty of security guards to patrons of licensed premises - NEGLIGENCE – breach – whether hotel staff should have informed security guards that patrons had been refused service of alcohol – whether security guards should have attended to patron injured in fight – whether risk of fight breaking out was reasonably foreseeable - NEGLIGENCE – causation – whether failure to take steps to prevent fight caused the plaintiff’s injury

CONTRACTS – general contractual principles – parties – identification of parties – where contract made with a business – where registered proprietor of business name not carrying on business under that business name – where company owned by registered proprietor of business name carried on business under that business name – whether contract made with registered proprietor of business name or with company that carried on business under that business name – where statute provides prima facie presumption that business is carried on by registered proprietor of business name – statutory presumption that business is carried on by registered proprietor of business name rebuttable by evidence – identification of parties to a contract to be determined in accordance with the objective theory of contract – Business Names Act 1962 (NSW) - CONTRACTS – general contractual principles – parties – identification of parties – whether subsequent communications relevant to determining identity of parties

Succession. Family Provision. Estate entirely distributed before commencement of proceedings. Claim by adult son. Financial and material circumstances of Plaintiff. Whether there has been conduct disentitling. Plaintiff is the only eligble person. Whether Plaintiff has been left without adequate provision for his proper maintenance. Competing claim of First Defendant, who is sole object of testamentary beneficence of the Deceased. Proceedings out of time. Notional estate

CONVEYANCING [187] - Land titles under the Torrens system - Caveats against dealings - Lapse, removal and withdrawal - Generally - Extension - Application for - Discretion of Court - Balance of convenience - Whether damages adequate remedy.

WIMWCA - Review of decision of Appeal Panel - procedural fairness - re-examination

Civil procedure - application to amend defence

Judicial review - decision of Local Court Magistrate - s 175(3)(c), Criminal Procedure Act - name of prosecutor

Extension of time to appeal decision of Costs Assessor

Appeal from Local Court - judgment entered in absence of plaintiffs - Summons in this Court struck out of list by reason of non-appearance of plaintiffs - review of refusal to reinstate to the list heard with appeal - denial of natural justice

LIMITATION OF ACTIONS - Statutes of limitation - Recovery from council of monetary contribution - Limitation period - Applicable if monetary contribution was a tax within the meaning of the act - Statutory construction - Limitation period applicable - Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 5 - Environmental Planning and Assessment Act 1979 (NSW), s 94 - LOCAL GOVERNMENT - Payment by developer to council of monetary contribution as a condition of development consent - Action to recover part of payment from council - Limitation period - Applicable if monetary contribution a tax within the meaning of the act defined as "fee, charge or other impost" - Limitation period applicable - Recovery of Imposts Act 1963 (NSW), ss 1A, 2, 5 - Environmental Planning and Assessment Act 1979 (NSW), s 94

Declaration - restrospective operation of Division 6 of Part 2A Civil Liability Act 2002 - personal injury damages - offender damages - not an award of personal injury damages - damages not required to be held in victim trust fund.

Appeal decisions of Local Court Magistrate - description of plaintiff

Criminal law - Sentencing - Supply prohibited drug - Standard non parole period - Plea - Objective seriousness - Accumulation of sentences.

CRIMINAL LAW - Appeal against conviction - Crown case for murder based on circumstantial evidence - Appeal based on points not taken below - Rule 4 of Criminal Appeal Rules - Whether miscarriage of justice shown.

Particulars - claim for indemnity under s151Z(1)(d) Workers Compensation Act 1987 - plaintiff must establish damages injured worker would recover in action against wrongdoer - what particulars of damages to be provided - whether judge erred in declining to order provision - was obligation to provide particulars - but request was excessive - no appealable error.

WORKERS’ COMPENSATION – Medical Assessment Certificate (MAC) – where statute allows appeal against Medical Assessment Certificate on limited grounds – where grounds of appeal were deterioration of the worker’s condition that resulted in an increase in the degree of permanent impairment and availability of additional relevant information – where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists – criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists – what counts as a ground of appeal ‘existing’ – whether Registrar required to decide if ground of appeal is made out on balance of probabilities before appeal can proceed – where statute confers on Registrar the power to refer a matter for further medical assessment as an alternative to an appeal before an Appeal Panel – whether pre-conditions for appeal must exist before Registrar can refer a matter for further medical assessment – Workplace Injury Management and Workers Compensation Act 1998 – Workers Compensation Act 1987 - ADMINISTRATIVE LAW – particular tribunals of bodies – Workers Compensation Commission – Medical Assessment Certificate (MAC) – where statute allows appeal against Medical Assessment Certificate on limited grounds - where appeal not to proceed unless it appears to the Registrar of the Workers Compensation Commission that at least one of the grounds for appeal exists - criterion for appeal proceeding is not the objective existence of any of the grounds of appeal but the opinion of the Registrar concerning whether one of those grounds exists – where Registrar allowed appeal to proceed – whether ‘no evidence’ to support Registrar’s decision – whether Registrar bound to provide reasons for decision – whether Registrar’s decision of a judicial character – whether Registrar engaged in determining the legal rights and duties of parties – where Registrar not making any inquiry concerning facts – where Registrar’s decision did not finally decide any legal rights and duties – whether special circumstances required Registrar to provide reasons for decision - WORKERS’ COMPENSATION – transitional arrangements on introduction of new system for the calculation of compensation for non-economic loss – conclusiveness of Medical Assessment Certificate – Workers Compensation Act 1987 - Workplace Injury Management and Workers Compensation Act 1998 - COURTS AND JUDGES – appeals – whether trial judge failed to accord natural justice – whether opportunity to put additional submissions to appellate court cures breach of natural justice - COURTS AND JUDGES – appeals – whether trial judge failed to provide adequate reasons - STATUTES – Acts of parliament – construction – construction by reference to objectives of statute - illegitimacy of construing statute by reference to practice directions – Workplace Injury Management and Workers Compensation Act 1998, s 327

CONTRACTS – Construction and interpretation of contracts – Share sale agreement – First defendant’s covenant in restraint of trade – Restraint against directly or indirectly carrying on business – Held restraint applied to acts of first defendant by which the first defendant or the second defendant carried on a proscribed business – Held that first defendant’s providing working capital to and being a beneficial shareholder in second defendant did not contravene restraint - Held that enticing supplier away from second plaintiff to second defendant, proffering internal advice and assistance to second defendant, and dealings with third parties on behalf of the third defendant, contravened restraint. - CONTRACTS – Construction and interpretation of contracts – Prohibition in share sale agreement against enticing away from first plaintiff any customer, supplier or employee of “Restricted Business” – Held that first defendant breached share sale agreement by enticing supplier and certain employees away from first plaintiff. - CONTRACTS – Obligation of confidentiality – Obligation breached by first defendant by disclosure of contact details of supplier to second defendant. - EQUITY – Equitable remedies – Injunctions – Injunction to restrain continued breaches of contract. - EQUITY – Fiduciary duties – Whether fiduciary duties owed by first defendant as a consultant – Where fiduciary duties owed as director and employee ceased when directorship and employment ceased – Where no evidence of first defendant being given tasks to perform from which fiduciary obligation to second plaintiff might arise - Whether fiduciary duties to second plaintiff arose from terms of consultancy contract with third plaintiff and first defendant’s possession of confidential information – Held that fiduciary relationship with second plaintiff not established. - EQUITY – Confidential information – Where second defendant in possession of second plaintiff’s confidential pricing information – Where evidence of misuse of certain confidential information but not other information – Injunction to restrain misuse of such information. - TORTS – Interference with contractual relations – Knowing and intentional interference – Held that second and third defendants liable for knowingly interfering with first defendant’s contractual relations. - TORTS – Other economic torts – Unlawful interference with contractual relations – First defendant’s covert provision of funds amounted to breach of consultancy agreement but not shareholders share sale agreement – Interference by fourth defendant by assisting with covert provision of funds – No knowing interference or intention to cause loss on the part of fourth defendant – Held that fourth defendant did not unlawfully interfere with contractual relations.

Family Provision. Application by widow who had separated from deceased prior to his death. Small estate. Order for legacy. No matter of principle.

APPEALS – Appellate review principles - Interference with discretionary judgment of the court below – Discretion under s1317EA(4) Corporations Act – where court is required to be “satisfied” of a matter then appellate court must exercise restraint, s1317EA(4) Corporations Law - CORPORATIONS – Management and Administration – Contravention of civil statutory duty established – Civil statutory penalty for breach of duty - s1317EA(4) Corporations Act – fit and proper person threshold – findings of contravention not be treated as a presumption of absence of fitness and propriety – strong weight of positive character evidence – evidence of lack of dishonesty and impropriety – evidence of skill and propriety in subsequent management. - CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – Fiduciary and related statutory duties – Remedies and penalties for breach of duty – Civil statutory penalties – meaning of “serious” contravention, s1317EA(5) Corporations Law – relevance of consequences of contravention – relevance of degree of departure from requisite standard of care and diligence – degree of negligence higher than to establish civil liability - CORPORATIONS – Management and administration – Duties and liabilities of officers of corporation – Fiduciary and related statutory duties – Remedies and penalties for breach of duty – Civil statutory penalties – imposition of separate penalties for each contravention where multiple contraventions found – analogous to principle of totality in sentencing - WORDS AND PHRASES - “satisfied” – s1317EA(4) Corporations Law - “serious” – s1317EA(5) Corporations Law

TRADE PRACTICES – warranties in relation to the supply of services (Trade Practices Act 1974 (Cth), s 74) – materials supplied in connection with the supply of such services – whether there existed a contract between the appellant and the respondent whereby the respondent undertook to supply recreational services to the appellant – the supply of materials (a toboggan run and a toboggan) in connection with such recreational services – whether such materials were reasonably fit for the purpose for which they were supplied, namely, to undertake the toboggan run safely when operated by any member of the general public - TORTS – negligence – duty of care – breach – whether the respondent, the operator of the toboggan run, breached its duty of care to the appellant – the issue of breach turns only on factual questions

TRUSTS AND TRUSTEES – judicial advice – jurisdiction – power of trial judge to give judicial advice as to the management or administration of trust property and the interpretation of the trust instrument under s 63(1) of the Trustee Act 1925 (NSW) – exercise of discretion –– whether trial judge erred in exercising his discretion to give judicial advice by failing to take into consideration the fact that the principal issue on which such advice was sought related to a contested question in the Main Proceedings (that is, whether the opponent had breached the trust and should be removed as trustee), thereby rendering the advice essentially adversarial in nature – whether judicial advice is an appropriate means by which to determine the substantive rights of parties in adversarial proceedings – whether trial judge erred by not weighing the potential benefit to the trust of authorising the opponent to obtain funds from the trust assets to defend the Main Proceedings, and affording it protection under s 63(2), against the potential detriment to the trust that, in the event the claimants are successful in the Main Proceedings, the total amount of trust assets would significantly be reduced – whether s 63(2) empowers a court to make orders as to judicial advice subject to revocation – whether, if the trial judge erred in exercising his discretion, the Court of Appeal should exercise afresh the discretion

Family Provision. Application by natural child who was adopted by Child Welfare Department. Orders made for legacy. Consideration of s25(5) of the Act.

Judicial advice sought by trustee of trust to pay wages and other entitlements to class of employees of company in voluntary administration - whether advice should be given - advice re amounts proposed to be paid to employees - treatment of GEERS payments - increased remuneration - costs

PROPERTY - Strata plans - Strata Management Statement provided that "owners" of commercial lots in strata building must not use lots as fast food outlets - Lot used by lessee as fast food outlet - Proper construction of Statement - Whether owner permitted lessee to use lot in breach of Statement - Whether owner should be ordered to require lessee to stop using lot as a fast food outlet - LANDLORD AND TENANT - Construction of lease - Whether lessee's use of lot as a fast food outlet in breach of lease - Whether conduct of lessor constituted waiver or estoppel

CORPORATIONS – Winding up – Statutory demand – Order setting aside under s 459G of the Corporations Act 2001 (Cth) made by consent – Where there was at all times a genuine dispute about the existence of the debt – Costs – Exception to general rule that costs orders will not be made where no hearing on merits of case – Where defendant acted unreasonably in serving statutory demand and not agreeing to its withdrawal – Order that defendant pay plaintiff’s costs. - (CTH) Corporations Act 2001, ss 459G, 459H

INTERLOCUTORY INJUNCTION – Application to restrain holding of Pre-selection Committee Meeting – issue of construction of State Liberal Party’s Constitution – whether serious question to be tried – balance of convenience.