Cases and authorities

Contract – lease – offer and acceptance – ambiguity in terms of offer – use of surrounding circumstances – use of pre-contractual conversations - Contract – lease – offer and acceptance – deviation from offer – whether deviation for sole benefit of offeror - Contract – lease – variation - offer and acceptance – construction of offer – offer must correspond with acceptance – whether trial judge erred in construction of offer - Liquor Law – poker machine entitlements – entitlements attach to hotelier’s licence – transfer of poker machine entitlements must accord with Gaming Machines Act 2001 (NSW) - Liquor Law – poker machine entitlements as a species of property – rights to poker machine entitlements – as respondents not holders of hotelier’s licence rights only created by contract or trust - Liquor Law – hotelier’s licence not property – no beneficial ownership in hotelier’s licence

PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Representative orders – “Same interest” – What constitutes – Parties have the “same interest” where declaration sought in which represented persons have a “common interest” and would benefit from such declaration – Claim for damages cannot be maintained on behalf of represented persons – Order that leave to bring representative action will be granted if pleadings amended so that representative action only brought in respect of declaration in which represented persons have the same interest – Uniform Civil Procedure Rules 2005 (NSW) r 7.4. - PROCEDURE – Supreme Court procedure – New South Wales – Procedure under Rules of court – Parties – Whether court should order that proceedings not be carried on as representative proceedings – Potential for multiplicity of proceedings – No less convenient for proceedings to be brought as representative proceedings than as an action with multiple plaintiffs under r 6.19 – No sufficient reason to order that plaintiff cannot seek declaration in representative action – Uniform Civil Procedure Rules 2005 (NSW) r 6.19, r 7.5.

Tribunal finds breach of agreement - fails to make findings as to other statutory requirements - ambit of s67 - statutory provisions and denial of procedural fairness

Sentencing - offences of murder and demand money with menaces - death occurring during course of abduction of victim - assessment of offender's evidence given after conviction - whether or not standard non-parole period to be applied - application of principles of totality

CORPORATIONS - winding up - application for winding up in insolvency - defendant's company goes into Part 5.3A administration - whether hearing of winding up application should be adjourned - where creditors' interests lie

Residential tenancy agreement - application by tenant to have rebate of rent provision struck out - power to modify - applicable only to continuation of fixed term agreements

CONTEMPT – civil and criminal contempt – where no appeal from acquittal of charge of criminal contempt – distinction between civil and criminal contempt – whether charge was of civil or criminal contempt – Supreme Court Act 1970, section 101 – Australasian Meat Industry Employees’ Union & Ors v Mudginberri Station Pty Ltd (1986) 161 CLR 98 – Witham v Holloway (1995) 183 CLR 525 - CONTEMPT – subpoena to produce documents – alleged failure to comply with subpoena – elements to be proved to establish a contempt of this type – that alleged contemnor had documents of the type called for by the subpoena – mental element of the contempt – standard of proof requires proof beyond reasonable doubt – Witham v Holloway (1995) 183 CLR 525 - - COURTS AND JUDGES – bias – actual bias – whether trial judge displayed actual bias - - PRECEDENT – proposition of law assumed to be correct but not argued or considered in earlier decision – whether binding

Succession. Family Provision. Large estate. Claim by two adult children. Financial and material circumstances of each Plaintiff. Whether each Plaintiff has been left without adequate provision for his or her proper maintenance. Appropriate form of order.

Order for access - defamation proceedings - defence of contextual truth - relevance.

WILLS PROBATE AND ADMINISTRATION - executors - claim for commission for pains and trouble - extensive work involved in bringing about sale of waterfront property with marina rights - review of decision of deputy registrar - decision entirely on facts - no legal principle involved

CRIMINAL LAW – Appeal – verdict — whether unsafe or unsatisfactory — role of appellate court – whether verdict open to jury acting reasonably - CRIMINAL LAW – Appeal – appeal against sentence – whether sentence manifestly excessive - CRIMINAL LAW – Appeal – appeal against sentence – whether trial judge based sentence on correct level of offender’s culpability

CRIMINAL LAW – APPEAL – error in calculation in special circumstances – parity in sentencing – justifiable sense of grievance – impact of hardship on third party only exceptionally a factor in reducing sentence but may be special circumstances.

COSTS – Offers of settlement – where offer made by defendant in course of court-referred mediation substantially more favourable to plaintiff than judgment – whether evidence of offer admissible – where offer open only for short time – where offer not stated to be Calderbank offer nor obviously so – whether defendant’s costs should be payable on indemnity basis. - ALTERNATIVE DISPUTE RESOLUTION – Mediation – admissibility of evidence of statements made during mediation.

Appeal against rejection of application for a contractor licence - no error of law

MORTGAGES [50] – Mortgages and charges generally – Remedies of mortgagee – In general – Injunction to restrain exercise of mortgagee’s powers – Necessity for offer of redemption and payment into court – Exceptions.

Home warranty insurance - period of insurance and making of building contract - building owners

Succession. Family Provision. Claim by adult daughter. Under will Plaintiff receives a life estate. Financial and material circumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Proceedings not instituted within prescribed period. - Trusts. Removal of trustees. Breach of trust. Conflict of interest.

Transfer of proceedings - similar, if not identical, issues in proceedings in different courts - question of jurisdiction of District Court - defendant's delay - objects of Civil Procedure Act - interests of justice best served by transfer of proceedings.

CONTRACTS - general contractual principles - construction and interpretation - deed between shareholder in company and prospective bidder under off-market bid - covenant by shareholder to accept prospective bidder's bid - exception if "higher offer is made" - where target company and prospective competing acquirer announce intention to promote scheme of arrangement - whether any "offer ... made" - CORPORATIONS - takeovers - whether existence of prior deed caused offers under the off-market bid to offend s.619 or s.627 - EQUITY - equitable remedies - specific performance - contract relating to shares quoted on stock exchange - where bidder seeks all shares by off-market bid - preliminary contract to secure strategic parcel - whether damages adequate remedy for breach

Threshold dispute - degree of permanent impairment - service of Pre-Filing Statement - alleged defective Pre-Filing Statement - jurisdiction of Registrar

Set-off - Interest - Costs

Criminal Law - Sentence - Conviction of murder after trial - standard non-parole period provisions applicable - whether standard non-parole period appropriate.

Statutory construction - Civil Liability Act - whether Part 2 applies to limit damages on a claim per quod servitium amisit.

ADMINISTRATIVE LAW – Validity of regulation excluding Pt 4 of the Civil Liability Act 2002 (NSW) (the Act) from operation with respect to civil liability arising before 26 July 2004 – Extent of regulation making power – Construction of statute – Whether regulation ultra vires and invalid because inconsistent with the Act – Meaning of class or classes of civil liability – Whether apportionable claims falling within Pt 4 of the Act delineated by a period of time constitute a “class or classes” of civil liability

CORPORATIONS - winding up - statutory demands - application for order setting aside statutory demand relating to debt which is acknowledged but said not to be due and payable until a future date - application for order setting aside statutory demand containing conflicting statements as to amount demanded

PRACTICE AND PROCEDURE – Pleading requirements for a person claiming to be one of two or more persons whose acts or omissions caused the loss that is the subject of an apportionable claim under Pt 4 of the Civil Liability Act 2002 (NSW) – principles applying to applications to strike out pleadings upon which Pt 14 r14.28 UCPR is based, apply with equal force to proceedings in the Technology and Construction List - CIVIL LIABILITY ACT 2002 – Pt 4 does not apply if the liability arose before 26 July 2004 and therefore cannot be pleaded as a defence to a liability arising before that date

PRACTICE AND PROCEDURE – Approval of settlement of proceedings involving defendants who are minors – Nature and ambit of Court’s jurisdiction to approve such settlements – Lacuna in ss 75 and 76 of the Civil Procedure Act 2005 (NSW) – No indication that ss 75 and 76 were meant to interfere with Court’s long-established supervisory jurisdiction – Settlement in interests of minors and accordingly approved

EQUITY – MORTGAGES – Marshalling of securities – No common debtor – Exception to common debtor rule – Where company gave first ranked charge to defendant creditor as security for loan to company and to secure guarantee of debts of company directors – Where company directors gave mortgages to defendant creditor to secure loans to them – Where company gave second ranked charge to plaintiff creditors as security for loan to company – Where defendant creditor used company assets to repay company loan and directors’ debts – Where company had right of subrogation against directors – Whether plaintiff creditors could be marshalled to defendant creditors’ mortgages given by directors – Plaintiff creditors entitled to marshalling – Company directors could not rely on company’s rights of subrogation as defence to marshalling claim

Malicious prosecution - fabrication by police of admissions - institution of criminal proceedings - who is the prosecutor - elements of tort of malicious prosecution - material available at time of charge - absence of reasonable and probable cause not established - presence of malice.

Criminal Law - Sentence - manslaughter - death of baby by shaking.

Criminal Law - Sentencing - relevance of mental illness of the offender - whether sentence excessive having regard to Henry guideline.

MENTAL HEALTH – statutory interpretation of s10(4) Mental Health (Criminal Procedure) Act 1990 – purpose of the scheme established by the Mental Health (Criminal Procedure) Act 1990 – discretions available to the trial judge - “inappropriate to inflict any punishment” – meaning of “any punishment” – applicability of sentencing principles - APPEAL – New South Wales – Court of Criminal Appeal – s5F(3)(b) Criminal Appeal Act 1912 – whether an order pursuant to s10(4) of the Mental Health (Criminal Procedure) Act 1990 is an interlocutory order for the purposes of s5F(3)(b) Criminal Appeal Act 1912 - WORDS & PHRASES – “any punishment”

Criminal law - sentence appeal - large number of offences - sentences partially concurrent and partially cumulative - did error arise from the ratio between the aggregate head sentence and the aggregate non-parole period.

CRIMINAL LAW: - application for leave to appeal against interlocutory orders - subpoenas seeking telephone intercept material - intelligence reports relating to Crown witnesses - legitimate forensic purpose - approach to legitimate forensic purpose in relation to intercepted conversations

Sentence appeal - discount for plea of guilty - whether plea made at earliest opportunity - effect of finding of special circumstances.

Estoppel – representations as to number of car spaces - whether respondent knowingly refrained from disputing rental review process - Leases – exclusive possession – whether Lessor in breach of covenant of quiet enjoyment - Leases – fit-out of premises - whether property passed in items of fit-out – construction of fit-out clause - substantial benefit obtained by lessee for payments made for fit-out – no total failure of consideration - Leases – fit-out of premises - whether items in fit-out had become fixtures – construction of fit-out clause - Leases – tenant’s fixtures – failure to remove

Costs – application to amend defence on day of trial – matter adjourned as unable to be heard within allotted time – whether trial judge erred in making costs orders against defendant - Costs – primary purpose of costs not to punish unsuccessful party but to indemnify successful party – whether trial judge applied wrong principle in exercising discretion to order costs

Damages - future economic loss - buffer - s 13(1) Civil Liability Act 2002

DEFAMATION – challenge to jury decision under s 7A(3) of the Defamation Act 1974 (NSW) that a newspaper article did not convey two imputations that were defamatory of the appellant – whether the jury’s answers were unreasonable – whether senior counsel for the respondent made submissions to the jury that were “misleading, impermissible and unjustifiable”, thereby giving the jury an opportunity to consider matters extraneous to the real issues in the trial – whether the trial judge misdirected the jury as to how they were to understand senior counsel’s submissions and the issue they were to determine

TAXES AND DUTIES - Goods and Services Tax - Supplies of fruit drinks are GST-free if, in terms of item 11 in the table to cl 1 in Sch 2 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) they are non-alcoholic carbonated beverages that consist wholly of juices of fruits - the fruit drinks supplied by the plaintiff contained 1% to 2% of non-fruit based additives - the Foods Standards Code allowed fruit juices to be produced with specified maximum amounts of additives - the fruit drinks complied with the Foods Standards Code - "Juices of fruits" had no trade meaning - "Fruit Juice" had a trade meaning as produced in accordance with the Foods Standards Code - Whether "juices of fruits" and "fruit juice" synonymous - Whether the legislature had adopted a trade meaning of "fruit juice" under the Foods Standards Code

Criminal law - sentence appeal - use by sentencing judge of phrase "the community would be horrified to think that anything other than a full time custodial sentence would be appropriate" - was this an irrelevant consideration.

CRIMINAL LAW - Application for a directed verdict

CORPORATIONS – Statutory demand – Service of documents – Application to set aside or vary statutory demand on grounds of offsetting claim by post – Whether application to set aside made within 21 days of service of statutory demand – Service of statutory demand under s 109X (CTH) Corporations Act – Where mail addressed to registered office diverted to post office box - Where evidence rebuts presumption in s 29 of (CTH) Acts Interpretation Act that statutory demand served in the ordinary course of post – Applicability of s160 of the (NSW) Evidence Act – Section 160 of the (NSW) Evidence Act not displaced by s 109X of (CTH) Corporations Act and s 29 of the Acts Interpretation Act (Cth) – No presumption that statutory demand received in post office box on fourth working day after posting where that was not the specified address – Whether receipt in post office box effective as service at registered office – Whether possible to rebut presumption of delivery in ordinary course of post if mail diverted to post office box - Held demand not served until taken to registered office after being collected from box – Plaintiff’s application to set aside statutory demand filed and served within time prescribed by s 459G (CTH) Corporations Act – Offsetting claim genuine. - (CTH) Corporations Act, ss 109X, 459G, 459H. - (CTH) Acts Interpretation Act, s 29. - (NSW) Evidence Act, s 160.

EQUITY - Undue influence and duress - Son instructed solicitor to transfer property from the father to him - Father said transfer was to be to both as tenants in common in equal shares - Father executed transfer documents - Solicitor said father advised to seek independent advice and documents read to him and explained - Father said son requested him to sign and he did so and solicitor did not speak to him - Son knew father placed trust in him and would do anything son asked in relation to the property - Father partially deaf, had difficulty reading English and 79 years old - Whether undue influence or unconscionable conduct established

Damages recovered in respect of health care claim - assessment of order for costs - personal injury damages - application of s198D

Indemnity costs - Special or unusual feature - Pursuit of hopeless application constituting relevant delinquency

[LAWYERS] – Application in 2005 to restrain defendant’s solicitors from acting for the defendant dismissed on basis of ‘Chinese Wall’/’information barrier’ put in place to prevent the disclosure of confidential information – confidentiality undertaking given by solicitors and sworn evidence that there would not be “any involvement” in the present proceedings – solicitor the subject of the affidavit and confidentiality undertaking signs consent short minutes of order – new application to restrain the solicitors from further acting for the defendant

Family Law. De facto relationship. Relationship was of lengthy duration. Respective contributions of parties. Plaintiff's contributions as homemaker and parent. Defendant's contributions as breadwinner.