Cases and authorities

Negligence - plaintiff injured by falling tree branch - whether Council under a duty to protect users of park against injury by falling tree branches - whether tree dangerous - whether Council's duty delegable - whether Council's duty delegated to contractor - whether contractor under a duty to users of park - whether contractor in breach of duty - whether contractor's duty delegated to subcontractor - Negligence - damages - plaintiff brain damaged - assessment

Disputes concerning payments between parties - determined by Local Court on findings of fact which involved resolution of conflicting evidence - resolution by findings on credibility and reliability - alleged insufficiency of reasons.

COSTS: - application for assessment - challenge to validity of application - summons for declaratory relief - statutory avenues of appeal - whether declaratory relief available

CONTRACT - agreement to provide the plaintiff with access over the defendants' land - whether parties agreed upon an easement or a contractual licence EASEMENTS - imposition of easement under s 88K - whether easement reasonably necessary for effective use or development of dominant tenement - no chance that Council would approve the construction of an access road within site of proposed easement - whether the plaintiff made reasonable attempts to obtain the easement or an easement having the same effect - failure adequately to explore alternative access to plaintiff's land

Personal injury - Motor accident - Damages - Brain damage - Future care - Fund management.

CONCURRENT TORTFEASORS – contribution – summary provisional determination – later judicial determination – remedy of cross-defendant who overpaid - DUST DISEASES TRIBUNAL – claims resolution process – settlement of plaintiff’s claim – whether Div 5 apportionment should cease to apply – relevant considerations

CORPORATIONS - winding up - application for winding up order by creditor relying on unsatisfied statutory demand - subsequently filed application by company seeking order for its own winding up - whether plaintiff's prior application an abuse of process - where plaintiff's application attended by certain procedural irregularities with respect to time - whether such defects productive of "substantial injustice" within s.467A

Family Provision. Application under the Family Provision Act by a nephew of the deceased. Held plaintiff not a member of the household and therefore his claim fails.

CONTRACT - where parties in current contractual relationship agree on new terms - whether intention to be bound immediately to new terms until formal instrument of agreement executed - relevance of subsequent conduct - whether terms sufficiently certain - implied terms - whether terms to be implied in law or in fact - breach - whether fundamental breach of repudiation - ESTOPPEL - whether defendant estopped from relying on, or has waived, any breach

WILLS PROBATE AND ADMINISTRATION – Probate – Caveats – Caveator claims plaintiff executors not proper person to take a grant – When passing over of named executors proper – Objections based on allegations of breach of trust in related estate of testator’s husband and breach of directors’ duties in relation to companies where deceased or deceased’s husband held shares – Conflict of interest in case of one of the executors – Whether evidence sufficient to order contested suit on issue of passing over – Whether a claim of misconduct in relation to other estates or companies appropriate for decision in probate action – Whether contested proceedings bound to fail.

FAMILY LAW AND CHILD WELFARE - Child welfare other than under Family Law Act 1975 and related Acts - Adoption - Parental responsibility in Director-General of the Department of Community Services consequent upon the giving of general consent to the adoption of the child under the Adoption Act 2000, s 75(1)(a) - Application by Director-General to continue parental responsibility until further order or for 12 months or until further order - Director-General required to report to the Court within 12 months of acquiring parental responsibility under s 78(1) - If child less than 18, the Court may order that the Director-General continue to have parental responsibility for a further period of 1 year under s 78(3)(b) - S 78(2) gives the court power to make any order concerning parental responsibility - Whether the period of 1 year should be extended

Conviction appeal - whether an "identification" direction required under s116 and 165 of the Evidence Act 1995 - appellant's counsel elicited evidence of the whole of the appellant's criminal record - whether unfairness resulted - whether any rational or reasonable explanation for eliciting this evidence - miscarriage of justice - whether "cultivation of not less than the commercial quantity of plants" requires the actual handling of that number of plants by an offender for the element of the offence to be made out.

Crown appeal - substantial importation of heroin - proper approach to expression of discounts in sentence

Conviction appeal - evidence - statement made to bank investigators - admissions - whether interview oppressive in terms of s84 Evidence Act 1995 - whether unfairness under s90 of Evidence Act established - application of discretion under s90. - Summing up - whether jury adequately directed as to circumstantial evidence - redirection not asked for at trial.

Legal Practitioners - s345 of Legal Profession Act - whether "reasonable prospects of success" when trial commenced - exercise of discretion by trial judge under s348(1)(a) of the Legal Profession Act - solicitor ordered to pay costs awarded against plaintiff - effect of s43A Civil Liability Act on plaintiff's claim.

CORPORATIONS - winding up - contributory's application - just and equitable ground - whether director misconduct or lack of confidence shown - whether discretion to order winding up should be exercised - where defendant and opposing directors and shareholders willing to join in voluntary winding up in due course

CONVEYANCING – Torrens system – Caveats against dealings – Who may lodge – Meaning of phrase “person claiming an interest in a lot” under s 122(1)(a) of the Land Title Act 1994 (QLD) – Meaning of phrase “right…in relation to the land…” under s 36(b) of the Acts Interpretation Act 1954 (QLD) which defines “interest” – Urgent application by motion seeking order for removal – Whether serious question to be tried – Effect of failure to give usual undertaking as to damages – Evaluation of balance of convenience in circumstances of default under mortgage where non-removal would result in appointment of receivers, where funding for refinancing of mortgages secured by caveatees subject to removal of caveat, and where undertaking given by caveatees to caveators that other than refinancing there would be no disposition of interest in the lots pending final determination of dispute

CORPORATIONS - company title home unit company - action by directors to impose levy upon shareholders - whether objects for which levy imposed are objects permitted by constitution - whether levying power of directors exercised for proper purpose - whether forfeiture and sale of plaintiffs' shares for non-payment of levy would be oppressive, unfairly discriminatory or unfairly prejudicial

CORPORATIONS - winding up - statutory demand - application for order setting aside statutory demand based on judgment debt - offsetting claim asserted being claim for damages for defective work by proprietor against builder of home units - whether such claim genuine and of substance - contention that such claim unavailable because of (a) issue of various certificates indicating completion of work (b) expiration of defects rectification period or (c) sale of most units by plaintiff - claim held to be genuine offsetting claim

Administrative Law - proceedings before the Nurses and Midwives Tribunal - application for remedy in the nature of prerogative relief - not an appeal within s 67 of the Nurses and Midwives Act 1991 - denial of procedural fairness.

PARTNERSHIP – Dissolution – Partnership for undefined term dissolvable by giving notice – Determination of when partnership dissolved – Abandonment of basis on which partnership conducted amounted to abandonment of partnership – Abandonment operates as notice of intention to dissolve partnership – Effect – Assets – Whether land an asset of the partnership – Land purchased from distributed partnership profits and not treated as partnership asset in accounts – Held that land not a partnership asset – Outgoing partner entitled to share of value of net partnership assets as at date of dissolution – Plaintiff’s entitlement to interest on his share of value of net partnership assets – Profits – Profits earned by partnership business after dissolution – Whether outgoing partner abandoned entitlement to share of profits attributable to use of his share of partnership assets – Held that no such abandonment – Laches – Plaintiff’s delay in commencing proceedings to seek account of post-dissolution profits would cause unfair prejudice to defendant – Held that plaintiff gave notice of dissolution of partnership by abandonment of partnership - plaintiff entitled to share of value of net partnership assets as at date of dissolution - plaintiff entitled to interest under s 42(1) of the Partnership Act 1892 - doctrine of laches precluded plaintiff from claiming account of profits arising from defendant’s use of his share of partnership assets. - (NSW) Partnership Act 1892, ss 20, 21, 26(1), 32(c), 42

CORPORATIONS – Winding up – Application for leave to proceed against a company in liquidation sought under s.500(2) Corporations Act 2001 (Cth) – Requirements for leave – Whether applicant as partner in a dissolved partnership with receivers appointed has standing to bring a claim in relation to partnership property

EQUITY – Specific performance – circumstances in which specific performance will be ordered before any breach of contract – where contract for sale of share in home unit company is conditional on development approval - when equitable right to specific performance accrues – held, right accrues on making of contract

CRIMINAL LAW - application to vary bail conditions - accused taking steps to secure funding for private legal representation

Application for transfer from District Court to Supreme Court to permit cross-vesting to Victoria - tests - interest of justice - whether fact that action commenced in District Court relevant

Breaches of Warranties - Representations relied on as founding claims under s 51A and s 52 of the Trade Practices Act - damages - assessing damages under the Trade Practices Act

TORTS – Negligence – road accident cases – head-on collision – liability as between plaintiff driver and defendant driver – relevance of Australian Road Rules – causative breach – failure to maintain proper lookout – failure to keep left – opportunity to take evasive action. - TORTS – Contributory negligence – road accident cases – relevance of Australian Road Rules – error of judgment on part of plaintiff – plaintiff’s duty of care – breach on part of plaintiff – significance of causative breach on part of plaintiff. - EVIDENCE – absence of explanation or elucidation as to material issues of fact on part of defendant notwithstanding the admission in the plaintiff’s case of his statement to Police – availability of Jones v Dunkel inference in favour of plaintiff – application of principles.

[CORPORATIONS] – Share Sale Agreement/Shareholders Agreement/Services Agreement - Whether vendor's conduct in excluding the purchaser of a 50% share in company from the management of the company amounted to oppression (s 232 Corporations Act 2001) - Whether an order for purchase of the share should be made when provisional liquidator appointed - Fixation of price at which share to be purchased (s 233 Corporations Act 2001) - [CONTRACT] - Whether vendor breached warranties in Share Sale Agreement - Whether appropirate to award damages for breach of warranties where order made for purchase of share - Whether vendor breached implied obligation to co-operate in causing company not to pay purchaser's entitlements under Services Agreement - Whether appropriate to award damages - [MISLEADING OR DECEPTIVE CONDUCT] - Whether vendor's conduct misleading or deceptive - Whether purchaser relied upon alleged representations - [PRACTICE AND PROCEDURE] - Practice Note governing commercial causes - Alleged deficiencies in plaintiffs' pleadings - Timing of complaints about pleadings - Ambit of "cards on the table" approach to litigation - Late application to amend pleadings

REAL PROPERTY [314]- Torrens Title- Tenants in common in undivided shares- Separate certificates of title- Some shares encumbered by mortgages- Sale in lieu of partition- Trustees for sale of whole of the land take free of encumbrances affecting undivided shares- Mortgagees' rights will be against fund raised by sale of the whole.

CROWN LANDS – Lease of crown land – Ministerial consent required for mortgage over lease of crown land – Notice of intention to exercise power of sale under mortgage served before ministerial consent to mortgage obtained and before registration of mortgage – Enforcement proceedings commenced before ministerial consent obtained and before registration of mortgage – Ministerial consent to mortgage obtained and mortgage registered subsequent to service of notice of intention to exercise power of sale – Ministerial consent terms required mortgagee to notify minister of intention to take enforcement action – Notice not a nullity although it was served prior to registration of mortgage – Notice not a nullity although it was served prior to ministerial consent to mortgage – Mortgagor not entitled to rely on ministerial consent term for the benefit of the minister

ADMINISTRATIVE LAW [1026] – Judicial review – Standing to institute proceedings – Generally – Person not suffering special damage - EQUITY [334] - Equitable remedies - Injunctions - Interlocutory injunctions - Serious question to be tried - No case that cruelty is likely to be inflicted on animals.

SUCCESSION [151]- Will- Construction- Gift by testator to plaintiff son of "such interest as I may have at the time of my death in the estate of my late father"- Father's estate distributed before testator's death- Whether gift passed testator's interest in real property that vested in him under his father's will- Whether solicitor's file note admissible for purpose of clarifying testator's intentions- Doctrine of ademption considered.

PRACTICE – trial – trial by jury – whether trial by jury is in the “interests of justice” - STATUTES – interpretation – “interests of justice” – Supreme Court Act, s 85(2)(b) - STATUTES – interpretation – utility of second reading speeches

CONTRACTS – Plaintiff in proceedings no. 2649/02 claimed beneficial interest in properties in New South Wales and Queensland held by third defendant on trust for first and second defendants – Where plaintiff paid moneys to first defendant for purposes of property investment but did not reach agreement with defendant that plaintiff should have any defined beneficial interest in properties – Where no compliance with ss 23C or 54A Conveyancing Act 1991 (NSW) or ss 11 or 59 Property Law Act 1974 (Qld) – Where no evidence of acts of part performance – Khoury v Khouri [2006] NSWCA 184 applied – Held that plaintiff not entitled to beneficial interest in properties - CONTRACTS – Agreements not intended to create legal relations – Domestic, social and other agreements – Plaintiff in proceedings no. 3668/03 claimed that defendant agreed to leave property to plaintiff upon defendant’s death in exchange for moneys contributing towards purchase price of property – Whether plaintiff and defendant intended to create legal relations – Held that plaintiff contributed moneys to defendant as gift - LIMITATION OF ACTIONS – Plaintiff in proceedings no. 3668/03 claimed that defendant failed upon demand to return moneys and goods given to defendant for safekeeping – Plaintiff’s claim in detinue – Plaintiff’s claim statute-barred by virtue of ss 14 and 21 Limitation Act 1969 (NSW) – No questions of principle.

PERSONAL INJURY – workplace injury – breach of statutory duty – failure to fence – failure to provide safety harness – painting contractor engaged to measure and quote – where owner/occupier employs person to coordinate building work who undertakes actual supervision then employer liable for injury to contractor – Construction Safety Act 1912 – meaning of “carries out” – meaning of “work in” as “work related to” or “work intimately connected with” - NEGLIGENCE – common law – occupier’s liability - CONTRIBUTORY NEGLIGENCE – relative causation - DAMAGES – no allowance for superannuation benefits where business income basis of economic loss

EASMENTS– Easement for electricity and water – CONSTRUCTION – Easement to draw water from neighbouring dam – Whether easement permits the maintenance and operation of a pump on the servient tenement – Whether easement may restrict servient tenement from using water in specified conditions – ENFORCEABILITY– Whether Water Management Act 2000 renders easement for water unenforceable – Whether Water Management Act 2000 precludes servient tenement from supplying water to dominant tenement

Review - decision of Appeal Panel - WIMWCA

Offender in custody - permanent impairment threshold - application for medical assessment - medical dispute - need for competing assessments by medical experts as to degree of permanent impairment - what must be attached to the application.

Appeal decision of CTTT - unlicensed contractor, doors and windows

Authorities to conduct controlled operations granted under Law Enforcement (Controlled Operations) Act 1997 (NSW) - operations involving sale and supply of prohibited drug (cocaine) - whether decisions of Commissioner of New South Wales Crime Commission to grant authorities contravened provisions of s.7(1)(b) of the Act - prohibition on grant of authorities involving participants engaging in conduct likely to seriously endanger health and safety of specified persons - and therefore invalid - objective test to be applied in determining whether authority under the Act will involve conduct by a participant that is likely to seriously endanger the health or safety of specified persons - prohibition involves requisite causal nexus being established - authorities lawfully granted - Wednesbury unreasonableness not made out - reporting requirements under s.6(3)(d) of the Act - content of the obligation - whether obligation capable fo being fulfilled when prohibited drugs used in controlled operation not likely to be recovered.

Arbitration - Contract - Arbitration proceedings concerning contractual arrangement close to completion - Claimant placed into administration - Arbitration proceedings include cross claim by respondent - Court order for the provision of security for the respondent's future costs and staying claimants claim until provision of security - No order staying respondents cross-claim - Security for costs furnished extended period after order made - Respondent seeks declaration that the arbitration agreement ended as a result of claimant's repudiation and respondents acceptance of such repudiation or orders pursuant to s 46 of the Commercial Arbitration Act 1984 (NSW) terminating the arbitration - Whether repudiation made out - Whether delay on part of claimant in complying with court's order for security capable of constituting a breach of term implied in s 46 (1) of the Commercial Arbitration Act to exercise due diligence in taking of steps necessary to have dispute referred to and dealt with in arbitration proceedings - Implied obligation to progress arbitration being mutual - Whether delay would give rise to substantial risk of it not being possible for fair trial of the issues in arbitration proceedings or likely to cause serious prejudice to respondent - No effective termination of arbitration agreement possible by reason of one party's repudiatory delay where other party failed to take steps to have such delay addressed - Party not ready, willing and able to perform contract may not terminate contract notwithstanding the repudiatory conduct of other party - Whether respondent lost right to accept any repudiation of arbitration agreement by accepting security for funds moneys - Whether statements by the applicant concerning its beliefs as to when funding would be obtained for the provision of the security comprised repudiatory conduct or lack of due diligence on part of applicant in the taking of steps necessary to have the dispute dealt with in the arbitration proceedings - Leave to proceed against company in liquidation

Criminal Law - Sentencing - Child sexual assault offences committed 26 years earlier - after complaint in 1982 the applicant sought treatment and did not reoffend - whether sentence excessive according to sentencing practices in 1982 - whether availability of remissions relevant - special circumstances - relevance of practice in 1982 for fixing non-parole period.

Criminal Law - Sentencing - Crown Appeal - Respondent charged with three offences - judge sentences for each offences separately - imposes suspended sentence on each - whether manifestly inadequate - whether approach to sentencing erroneous - discount for assistance - whether excessive - respondent re-sentenced.

CRIMINAL LAW - Section 5F appeal - motion to stay District Court proceedings - motion to restrain Crown Prosecutor from appearing at trial - role and duty of Crown Prosecutor - public comment to media about the trial - expression of opinion - pre-trial publicity - speech to law students - republication in newspapers - published material attributable to Crown Prosecutor - conduct in breach of Bar Rules - breach of Director of Public Prosecution Guidelines - lack of detachment from case - whether applicant denied a fair trial by the prosecutor’s conduct - whether stay should be granted– need to ensure proper administration of justice

Environment and planning – Building control – Restricted Premises Act 1943 s 17 – Manner in which a brothel is operated – Whether personal fault on the part of the owner or occupier of a brothel is required for an order under s 17(a) where the brothel is operating lawfully within a development consent

PROCEDURE - mediation - where differences between commercial parties appear to be entrenched but susceptible of reasonable resolution - where moderating influences to be expected of solicitors appear to be unavailable - where several proceedings have failed to produce resolution - case for court to require parties to engage in mediation