Cases and authorities

[CONTRACT] - Whether the parties had reached oral agreement on all essential terms with the intention of entering into a written contract no different from those terms - [QUANTUM MERUIT/EQUITABLE ESTOPPEL] - Whether, having regard to various aspects of the defendants' conduct, it was reasonable to assume a written contract would be entered into - Whether plaintiff entitled to recovery of expenditure incurred based on that assumption - [MISLEADING OR DECEPTIVE CONDUCT] - Whether the defendants represented that the first defendant would perform at the Concerts - Whether misleading or deceptive - Whether plaintiff relied on misrepresentation

Plaintiff claimed the defendant solicitors in breach of their duty to him by failing to comply with instructions to seek leave to adduce "fresh evidence" on the hearing of his damages appeal in 1995 of post traumatic stress disorder additional to cerebral or brain damage - plaintiff treated in 1973 in former Chelmsford Private Hospital - trial held in 1980 - lengthy delay in proceeding with appeal (1995) following a Royal Commission - Diagnosis of post traumatic stress disorder made in 1993 - questions as to what advice given concerning "fresh evidence" based on the diagnosis - solicitor entitled to rely upon counsel's advice - evidentiary requirements for expert medical opinion on a retrospective analysis of events over 20 years - evidentiary principles - expert opinion - requirement for cogent evidence on an application under s.106(2), Supreme Court Act 1970 to adduce evidence of post trial matters on an appeal - history of symptoms over many years - inconsistent evidence - whether historical substratum established necessary to support medical opinion evidence on the existence of post traumatic stress disorder symptoms and causation with treatment at former Chelmsford Private Hospital

Review of decision of a Registrar - in the nature of an appeal - ground of appeal to be made out - discovery - special reasons - discretionary considerations - questions of practice and procedure.

CORPORATIONS - winding up by the court - winding up of reinstated company in insolvency or on the just and equitable ground - plaintiff's standing as creditor - whether, by virtue of s 601AH(5), plaintiff is a creditor with respect to a "debt" said to be incurred during company's deregistration - whether sufficient evidence of insolvency - whether sufficient evidence of failure of substratum

PRACTICE & PROCEDURE - claim for damages for assault - leave to commence proceedings against insurer direct - whether arguable case that insurer may be liable - whether sufficient reason to sue insurer direct

Judicial review - decision of Electoral Commissioner to refuse to register election material containing offensive words

LIQUOR LAW - Licensing - Poker Machine Entitlements - Property of partnership between plaintiff and defendants - Defendants lessors and partnership lessee of hotel - Whether defendants in breach of fiduciary duty of good faith in giving notice of intention to terminate the partnership and notice terminating the lease - Whether partnership prevented from dealing with the poker machine entitlements under terms in the lease and partnership agreement - Whether plaintiff should be confined to damages - Whether hardship and balance of convenience favour injunctive relief

Family Provision. Application under Family Provision Act by two children of deceased. Consideration of their relationship with deceased. Discussion of the amount of costs incurred being $290,000 in an estate of only $600,000.

AGENCY - MORTGAGES AND CHARGES - Money given to agent for purpose of making a loan upon the security of a charge - Whether charge obtained - Inadequacy of primary judge's findings and reasons.

LEGAL PROFESSIONAL PRIVILEGE - implied waiver - documents relevant to an issue in the proceedings - claim against solicitors for professional negligence - whether documents relevant to separate legal advice about settlement of earlier proceedings

Review decision of Registrar - service of documents in China

CONVEYANCING – Contract for sale – Purchaser failed to complete – Property resold – Deficiency in sale price – Deposit forfeited – Whether deposit to be credited against reasonable expenses of resale and purchaser’s default – Held that in a claim for liquidated damages under cl. 9.3.1 of 2000 edition of New South Wales Standard Contract for the Sale of Land the forfeited deposit is only to be set off against deficiency on resale and not against reasonable expenses of resale and purchaser’s default.PROCEDURE – Pleadings – Application for leave to amend pleadings to seek relief against forfeiture – Evidence of prejudice to vendor if leave granted – leave refused.

Criminal trial: Directions - "suffering or permitting" premises to be used for the manufacture of prohibited drugs

Sentencing - offence subject to standard non-parole period - special circumstances applied to extend sentence

CRIMINAL LAW - appeal - criminal trial - murder - evidence - burden of proof - assessment by jury - indispensable intermediate facts - essential intermediate fact - circumstantial evidence - whether to be satisfied beyond reasonable doubt of each fact from which inference of guilt to be drawn CRIMINAL LAW - reasonable hypothesis consistent with innocence - hypothesis consistent with innocence must be more than mere speculation or conjecture - hypothesis consistent with innocence is reasonably possible - police investigation inadequate and capable of weakening Crown case - EVIDENCE - section 137 - restricting cross-examination - admissibility of document for the truth of its contents - significant probative value - positive identification - danger of unfair prejudice - EVIDENCE - section 38 - unfavourable evidence - unfavourable witness TRIAL BY JURY - juror's note - sanctity of jury room - finality of verdict - secrecy and confidentiality of jury deliberations inter se - irregularity in jury process - communications between jury and trial judge to be disclosed in open court - Black direction - reasonable apprehension or suspicion juror will not discharge task impartially - juror disqualification - juror bias - unsafe and unsatisfactory verdict - SENTENCING - appeal - murder - killing for financial gain - imprisonment for life - whether manifestly excessive

Sentence appeal - use of standard non-parole period when plea of guilty - error in using standard non-parole period as start point for calculation of sentence - failure to apply discount for early plea of guilty - meaning of "part of a planned or organised criminal activity" in s21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

CRIMINAL LAW - Offender of Aboriginal background - Affected by alcohol and drugs at the time of offence - Sentencing - Whether special circumstances ought to have been found - Whether sentence excessive

NEGLIGENCE – essentials of action for negligence – reasonable foreseeability – where nitrous oxide bottle fitted to motorcycle – explosive failure of fitment – whether injury sustained by volunteer inspecting bottle when it exploded was reasonably foreseeable – whether bottle inherently dangerous - APPEALS – appeal from District Court to Court of Appeal – nature of appeal by rehearing – correction of error – whether point not taken below able to be argued on appeal - TRIALS – issues – confining of issues at trial – whether election made to confine issues at trial - EVIDENCE – role of inferences drawn in accordance with Jones v Dunkel (1959) 101 CLR 298 in reaching conclusions on disputed matters of fact – whether all witnesses to a disputed incident need be called

CONTRACTS – General contractual principles – Construction and interpretation of contracts - PARTNERSHIP - Rights and duties of partners inter se - Capital, advances and share of profit or loss

DUST DISEASES – statutory definition – Farmer’s Lung – occupational asthma caused by flour dust – whether dust may also cause Farmer’s Lung – causative potential actual or theoretical

"Predominantly for personnel, domestic or househod purposes" s 6 Consumer Credit Code. - Expiry of Notice of Default not a bar to application under s 68 of Consumer Credit Code. - "Other reasonable cause" s 66 (1) Consumer Credit Code.

CONTRACT - franchise agreement - whether cross defendant's conduct misleading or deceptive - whether cross claimant relied on alleged misleading or deceptive conduct - representations by cross defendant as to future profitability and limitations of business - whether cross defendant had reasonable grounds to make representations - relief - deed of loan sought to be set aside - withdrawal of caveat sought - whether service of cross claim seeking removal of caveat may be effected at address for service of notices specified in caveat

EQUITY – Breach of confidence – Injunction to restrain – Interim relief –injunctions to restrain “use” of information - whether “use” injunction should be granted when it might inhibit party in commencing other proceedings – whether exception on restraint to permit use to inform recipient’s decision to commence other proceedings should be permitted – held, it should not – whether use injunction granted only where use would involve further dissemination – held it is not so limited. - JURISDICTION – Cross-vesting – transfer of proceedings – between Supreme Courts of States – relevant considerations – where defendants resident in Victoria, cause of action arises in Victoria, threatened breach is in Victoria, and issues will arise as to conduct of persons involved in previous proceedings in Supreme Court of Victoria – held, Victoria is the natural forum.

Appeal from Review Panel - s207 notice - production of costs agreements on a confidential basis - alleged that Panel had regard to costs agreement in dealing with plaintiff's objection concerning the indemnity rule- denial of natural justice - privilege and waiver of privilege.

DAMAGES - where tender and contract induced by misleading or deceptive conduct - measure of damages - no question of principle

CRIMINAL LAW - application to further adjourn commencement of criminal trial - further adjournment sought for accused to secure funds for private legal representation - adjournment refused

COSTS - No question of principle.

PRACTICE – Service outside the State – Application to set aside order for substituted service of subpoena on Australian citizen residing in foreign country –Uniform Civil Procedure Rules Pt 11, r 5 permits extraterritorial service of subpoenas – Whether substituted service of subpoena on witness in foreign country permitted – Discretionary considerations – Lack of power to immediately enforce subpoena

Dispute between owners corporation and unit owners - unpaid contributions and interest - claim for balance of legal costs of earlier proceedings as "expenses" under s80 - no basis shown justifying disturbance of decision of Magistrate.

TORTS – NEGLIGENCE – DUTY OF CARE – breach of duty – whether the design and configuration of a ramp constructed by the respondent was such that it amounted to a breach of duty on the part of the respondent – whether regard should be had to the fact that the respondent’s premises were frequented by elderly people – whether the respondent, in providing a safe environment as occupier, should have had regard to the fact that some of these people might be inadvertent, thoughtless or careless - TORTS – NEGLIGENCE – CAUSATION – whether the flaws in the design and construction of the ramp materially contributed to the appellant’s fall

CORPORATIONS - voluntary administration - deed of company arrangement - debt action by landlord against tenant for rent - tenant executed deed of company arrangement - landlord seeks leave to amend to claim order varying deed of company arrangement so that it does not apply to debt for rent - deed of company arrangement terminated - therefore nothing extant capable of being varied

Equity - Mandatory interlocutory injunctions - Serious case - Balance of convenience - Software Development and Support Agreement - Construction of contract - Copyright - Litigation concerning ownership of copyright in source code versions of computer programs - Estoppel - Claim to exclusive non-revocable licence to copyright covering every code version of subject computer programs including each source code version - Consideration of what is source code as compared to compiled versions or object code - Definition of "software" utilised by parties is general in its terms failing to distinguish between any language or form of code in which the computer program might be recorded

PROCEDURE – Joinder of parties – Necessary for final determination of proceedings that all affected parties joined – Where seriously arguable that laneway vested in Marrickville Council – Order that Council be joined as a party to proceedings – (NSW) Uniform Civil Procedure Rules 2005 r 6.24(1). - REAL PROPERTY – Roads – Whether laneway dedicated as a public road – Where seriously arguable that laneway vested in Marrickville Council – (NSW) Local Government Act 1906 s99 - (NSW) Local Government Act 1919 ss 4, 223, 226, 230, 232.

SUCCESSION - Wills, Probate and Administration - Probate and Letters of Administration - Testimentary instrument under the Wills, Probate and Administration Act 1898, s 18A - Instrument not found after death - Principal contents established - Whether presumption of destruction rebutted - Whether the deceased the father of children

CONVEYANCING [100] – Relationship of vendor and purchaser – Breach of contract – Breach by the purchaser: remedies of vendor – Re-sale – Recovery of deficiency – Election between recovery of deficiency and common law damages – Calculation of amount to be recovered including interest.

Newspaper - defamation - damages

APPEAL – appeal from a magistrate - whether a single judge of the Supreme Court correctly characterised the decision of a magistrate of the District Court as raising a question of law and displaying error – whether a single judge of the Supreme Court correctly exercised discretion to remit the matter for a further trial - APPEAL - practice and procedure - New South Wales - Suitors' Fund Act

CONTRACTS [23]- General contractual principles- Options- Exercise of option- Validity of exercise- Put and call option deed- Put option purportedly exercised by defendant vendor- Whether defendant served notice of its intention to exercise put option otherwise than as required by deed- Where option specifies precise method of service, it will generally be regarded as mandatory- Held no exercise of option.

EQUITY [99] – Trusts and trustees – Classification of trusts in general – Implied trusts – Resulting trusts – Where intention presumed – Rebuttal of implication – Intention to benefit – Evidence of common intention.

CONTEMPT – Procedure – Committal – Stay of execution – where undertaking to comply with order offered after defendant found guilty of contempt – Revocation of stay – where undertaking on which stay conditioned breached – Form of Warrant – Release from Committal – where apology and further undertaking to comply proffered

PRACTICE AND PROCEDURE – Privilege – Privilege against self-exposure to a penalty – Production and inspection – Pleadings – Evidence – Whether privilege available in proceedings for compensation orders under a civil penalty provision – Whether defendant can rely on privilege to avoid filing and serving a defence, or filing a defence not verified by affidavit and without certificate required under s 347 of Legal Profession Act 2004 (NSW) – Whether defendant can rely on privilege to avoid giving discovery, producing documents for inspection or filing or serving evidence in proceedings until after close of the plaintiffs’ case – Whether a corporation can rely on privilege to avoid giving evidence which would tend to expose a natural person to a penalty – Where prospect of penalty arises from no more than a possibility of future proceedings – Considered (CTH) Corporations Act 2001, ss 588G(2), 588M(2), 1317E(1)(e), 1317F, 1317G, 1317H, 1317HA, 1317J(2) and 1317J(4) – Held that privilege not available. - PRACTICE AND PROCEDURE – Application for stay until further and better particulars provided by plaintiff – Application to strike out plaintiffs’ statement of claim – Applications refused – No question of principle.

PROCEDURE — Commencement of proceedings against deceased defendant — costs orders obtained on applications made in name of deceased defendant —whether proceedings and orders a nullity or irregularities — joinder of statutory insurer - INFERIOR COURTS — District Court — status of orders made without power or jurisdiction - STATUTES — Motor Accidents Act 1988 — ss 17, 25, 47, 53, 54, 66A — District Court Act 1973 s 159 — District Court Rules Pt 7 r 8, Pt 24C rr 3, and 8, Pt 31 r 12A

CIVIL LIABILITY ACT – Civil Liability Act 2002 (NSW), s3B(1)(a) – statutory interpretation – whether the liability of a person in negligently failing to prevent harm from intentional acts of a third part is liability "in respect of an intentional act that is done with intent to cause injury or death" - CIVIL LIABILITY ACT – Civil Liability Act 2002 (NSW), ss 26A and 26B – definition of "offender in custody" – savings and transitional provisions – retrospective effect – operation of clauses 20, 21 and 26 of Schedule 1 - CIVIL LIABILITY ACT - Civil Liability Act 2002 (NSW), cl 26(4) – meaning of "finally determined" - DAMAGES – whether award of damages payable by the State is available as victim trust fund – operation of Civil Liability Act 2002 (NSW) s 26L - WORDS AND PHRASES – "in respect of" – meaning circumscribed by context

Appeal from Local Court - claim for commission - underwriting agreement - implied terms and performance thereof - rescission and variation of contract - costs.

Succession. Family Provision. Claim by widow. By will Plaintiff receives only a right of residence in matrimonial home. Unhappy marriage. Financial and material cicumstances of Plaintiff. Whether Plaintiff has been left without adequate provision for her proper maintenance. Chief beneficiaries are the sons of the Deceased, with whom he had no contact for more than fifty years. Competing claim of beneficiaries.

Judicial review of decision of Appeal Panel - entitlement to compensation for severe bodily disfigurement - s66 and Table of Disabilities - Guidelines - permanent loss - threshold requirement of a degree of permanent impairment of at least 15% - misdirection and requirement to give reasons.