Cases and authorities

NEGLIGENCE – duty of care – nature and content of duty owed by occupier of a hotel to its patrons – whether duty extends to protection against deliberate wrong doings of third parties - NEGLIGENCE – breach and causation – whether there was a breach of duty by the conduct of the bar manager – whether the breach caused the injury - PRACTICE AND PROCEDURE – inconsistent findings of liability between two plaintiffs in separate causes of action arising from the same incident.

PRACTICE - security for costs in Court of Appeal - review of Registrar's order for cash $25000 deposit by appellant - impecunious while awaiting trial since arrest in 2002 - Italian citizen, no resources, limited visa prevents employment or Social Services - assisted by friend and manages significant expenditure for friend - entitled to large credits on Credit Card accounts - consideration of Special Circumstances SCR Pt.51 r.16 - Order for Security for costs confirmed.

PRACTICE and PROCEDURE - abuse of process, repeated applications - in appeal proceedings the claimant made many unproductive applications - proceedings complicated by joinder of parties against whom he did not obtain remedy - after adverse judgment, claimant made two further Notices of Motion which were dismissed as abuse of process - consideration of elaborate history of appeal, a satellite appeal and CLD proceedings in which an order restraining further applications was made - order restraining further applications without leave of Judge of Appeal.

BUILDING AND ENGINEERING CONTRACTS - Progress payments - Claim under Building and Construction Security of Payment Act 1999 - Adjudication - Whether submissions of respondent "duly made" - Whether adjudicator was required to consider them - Whether determination of adjudicator invalid because of failure to comply with s.22 of the Act, lack of good faith or denial of natural justice.

NEGLIGENCE – duty of care – whether licensee of hotel had a duty to protect patrons from criminal assault by third parties – power and obligation to control provided by Liquor Act 1982 (NSW), ss 2A, 103(1), 103(3A) and 125 - NEGLIGENCE – breach – whether licensee had knowledge of an earlier assault and robbery – whether it was open to the trial judge to draw the inference that there was such knowledge – whether risk of attack was reasonably foreseeable.

WILLS PROBATE AND ADMINISTRATION - probate and administration -claim for revocation of solemn form grant - contested proceedings in 1983 involving 1978 will and 1969 will - 1977 will discovered and two beneficiaries under it including present plaintiff joined as defendants and submitting appearance filed - consent orders for grant in solemn form of 1969 will. Plaintiff claims unaware of 1983 proceedings and that no authority for submitting appearance to be filed - plaintiff's claims not established - whether in any event submitting defendant bound by compromise - WILLS PROBATE AND ADMINISTRATION - probate and administration - where proceedings compromised on basis later will passed over - necessity for evidence casting doubt on later will - exception when persons with interest in propounding later will are defendants and do not propound.

Practice. - Subpoenas. - Discovery. - Claim for client legal privilege.

CORPORATIONS - arrangements and reconstructions - Part 5.1 scheme of arrangement - application for court's approval - no matter of principle

CORPORATIONS - winding up - termination of winding up - winding up initiated by sole shareholder on basis that no further use for company - now seen that company will be necessary party to various legal proceedings which may need to be commenced in the future - attitude court should take to sole member's wish to terminate winding up

NEGLIGENCE – essentials of cause of action – breach of duty of care – Motor vehicle accident – personal injury – failure to stop – failure to swerve – failure to keep a proper lookout - JUDGMENTS AND ORDERS – statement of reasons for decision – interference with findings of fact – balance of probabilities – where evidence on balance of probabilities not supportive of findings at first instance

APPEAL – power of Consumer, Trader and Tenancy Tribunal to make an order for costs under s 192 of the Strata Schemes Management Act 1996 (NSW) – whether Tribunal required, under s 192, to make a costs order at the time of dismissal of the appeal – whether Tribunal, in order to award costs, is required to state expressly that it is dismissing an appeal under s 181(5) of the Act because the appeal is “frivolous, vexatious, misconceived or lacking in substance” – whether s 192 restricts the matters to be considered by the Tribunal when determining whether costs should be awarded when an appeal is dismissed – whether the appeal before the Tribunal did in fact lack substance

Expert Evidence – Admissibility – Whether evidence given by experts was related to their specialised knowledge or merely a means of telling the jury how the accident happened - Damages – jury verdict – whether award was manifestly excessive – whether Court reviewing jury award may have regard to awards in other personal injury cases - (ND)

INSURANCE - insured denied indemnity for accident which occurred on property he was leasing to agist stock - whether insurance agent was negligent - distinction between broker and agent - whether agent required to advise insured of exclusions in policy - duty of care owed by an agent to insured

NEGLIGENCE – NEGLIGENT MISSATEMENT – CAUSATION – whether representations made by the respondent caused economic loss or damage to the defendant - NEGLIGENCE – DUTY OF CARE – whether respondent, having made representations to the appellant, owed the appellant a duty not to leave the appellant in error when the representation became falsified by a change in circumstances – whether the respondent should have told the appellant the truth about a political issue - NEGLIGENCE – CONTRIBUTORY NEGLIGENCE – whether a business decision to take the risk that the respondent might not approve of its proposal amounted to contributory negligence - DAMAGES – whether uncertainties in proof of the appellant’s case precluded an award of damages to the appellant – quantification – whether and what discount in damages to be awarded against the appellant

EQUITY [340] - Equitable remedies - Injunctions - Interlocutory injunctions - Injunctions to preserve property pending determination of rights - Mareva injunctions - Other matters - Nature of evidence required – Standard of proof.

COSTS - Winding-up - Fundamental irregularity in winding-up application - Application to stay or terminate winding-up order - Plaintiff liable to pay costs incurred by defendant and third parties properly interested in application.

CORPORATIONS - Winding-Up - Statutory demand - Whether Graywinter principle is satisfied if ground of challenge is raised in the supporting affidavit by a reasonably available inference - Whether demand for liquidated damages was a demand for a debt - Where claim arose under contract for sale made by mortgagee in exercising power of sale - Mortgagee was custodian for a responsible entity of a managed investment scheme - Where there was a change of custodian and transfer of mortgage, but no assignment of chose in action by earlier mortgagee - Whether genuine dispute that debt not owed to new custodian claiming to be the creditor.

Appeal decision of CTTT - amend claim after 3 days of hearing to raise new issue

CONTRACT - joint venturers obtained rezoning and subdivision development consent for adjoining rural lands owned by each - further anticipated venture to jointly subdivide lands prevented by one party selling its land - whether variation of agreement as to proportionate liability for joint costs already incurred - whether agreement to pay interest on loan raised to pay for joint costs - whether agreement to pay compensation for land contributions contemplated by development consent - whether agreement to provide lands to construct access road - whether agreements re future joint costs, compensation and access road predicated on future joint development - whether agreements intended to be contractually binding. ESTOPPEL - promissory estoppel - whether defendant estopped from denying that plaintiff took out loan and incurred interest in reliance upon defendant's representation that he would contribute to interest costs - whether plaintiff estopped from denying that it is obliged to compensate defendant for land which development consent contemplated defendant would contribute for relocation of mangroves from plaintiff's land. MISLEADING AND DECEPTIVE CONDUCT - whether representations to pay compensation misleading and deceptive - whether representations predicated upon continuance of joint development. RESTITUTION - unjust enrichment - whether either party entitled to compensation for land which development consent contemplated that each party would contribute for non-residential lot use. REAL PROPERTY - caveat - compensation - caveat lodged over defendant's land by plaintiff to secure payment of proportion of costs and interest paid by plaintiff for rezoning and development applications - whether caveat lodged without reasonable cause - subjective and objective elements to test of honest belief on reasonable grounds - no evidence of lack of honest belief - reasonable grounds for lodgement.

Review Registrar's decision - set aside notice to produce

CRIMINAL LAW - Sentencing - State and Commonwealth offences - white collar crime - company officer - intent to obtain for financial advantage - pledging of assets - reckless signing of quarterly and annual returns - failure to disclose financial state of affairs - departure from standards of corporate governance - sentence structure - aggravating and mitigating factors - assistance to authorities

Criminal law - sentencing – Crown appeal – kidnapping and assault on single victim and further offence of violence on bail - respondent absconded on bail then surrendered to police after more than six years – whether too much weight given to rehabilitation – whether surrender constitutes assistance to the authorities – whether assaults on victim part of the facts of kidnapping – finding special circumstances to reduce non-parole period on basis of accumulation of sentences – whether sentence manifestly inadequate

TRUSTS - Constructive trust - Whether joint endeavour had broken down - Whether unconscionability established - SUCCESSION - FAMILY PROVISION - Notional estate - Failure to sever joint tenancy - Whether full consideration given - Family Provision Act 1982 s.22

COURTS AND JUDGES – Disqualification – Bias – Judge in own cause – Procedure – whether notice of motion for disqualification cognisable – whether notice of motion necessary – held, unnecessary - Apprehended bias – whether prior professional relationship between lawyer and client will disqualify lawyer, on becoming a judge, from sitting in proceedings to which former client is a party – whether reasonable apprehension of prejudgment of an issue – whether reasonable apprehension that judge may be predisposed to a view of the issue because of “interest” in propriety of past involvement – whether reasonable apprehension that judge may decide issue influenced by extraneous material previously briefed and subject to legal professional privilege of former client – whether reasonable apprehension of bias on an issue in case disqualifies judge from hearing interlocutory applications in which that issue will not arise – held, it does not.

CORPORATIONS - company deregistered on conclusion of voluntary winding up - application for order for reinstatement of registration - whether criteria for reinstatement satisfied - concurrent application for order terminating winding up - applicant for that order not within class of competent applicants - ASIC's non-opposition to reinstatement conditional on continuation of winding up

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 - Subsisting contract of sale entered into hastily and able to be rescinded without penalty.

CORPORATIONS - winding up - winding up in insolvency - statutory demand - application to set aside - whether demand sent by post to post office box was served - applicability of s.109X of Corporations Act and s.28A of Acts Interpretation Act - meaning of "office" - whether post office box may be means of access to office - informal service arising from actual receipt - whether person serving statutory demand aware of genuine dispute at time of service - whether abuse of process - whether "some other reason" to set aside under s.459J(1)(b)

TRAFFIC LAW – offences – proof of speed – speed measuring devices – photographic evidence of speeding offence – accuracy – evidence to the contrary

Family Law. Application for adjustment of parties' property interests under s 20 of the Property (Relationships) Act 1984. Consideration of whether contributions in an earlier relationship can be taken into account. Order made for adjustment.

Criminal Practice & Procedure - admissibility of Telephone Intercepts - accused overseas - police use friend to telephone - police agent - no warning - warrant granted in respect of telephone number in Australia - whether that number "likely to be used" by accused - whether evidence improperly obtained - or were "admissions" that it would be unfair to use - s90(b) Evidence Act.

CRIMINAL LAW: - Evidence - hearsay - murder trial - two accused - separate trials - at trial of first accused Crown calls second accused - second accused refuses to give evidence - whether portions of second accused's ERISP admissible against first accused

CORPORATIONS - winding up - special purpose liquidator appointed by court - application for issue of examination summonses - whether relevant criteria satisfied - application for direction that pursuit of examinations justified

SUCCESSION [198]- Will- Construction- Gift to brother on condition that he ensures testator's son "never wants for anything"- Whether the condition gives rise to an equitable personal obligation- If so, whether brother has accepted the gift- Personal liability of the brother enforceable by way of injunction or an order for equitable compensation.

PRACTICE – reference questions to an expert – extent to which court should involve itself in ongoing conduct of the reference

CRIMINAL LAW – sentencing – totality – stated intention to depart from statutory ratio of non-parole period – need for adjustment in overall sentence – relationship between totality of criminality and totality of sentences.

CRIMINAL LAW - Appeal by the Crown against judgment - drink driving - unlawful taking of blood - reliance on blood analysis evidence to establish blood alcohol level - blood sample ruled inadmissible by District Court - evidence central to the Crown’s case - whether Crown entitled to rely on the evidence - probative value of the evidence - public policy considerations

Sentence appeal manifest excess

Application for separate trial

COSTS - Liquidator - Proceedings initiated by liquidator were unsuccessful - Whether sufficient reason to depart from usual order that plaintiffs pay costs on party/party basis - Personal liability - Costs where subject matter of interlocutory process unreasonably contested by liquidator - Order that costs relating to interlocutory process be paid by plaintiffs on indemnity basis - No issue of principle.

COSTS - Discretion - Where no determination on the merits - Proceedings unreasonably instituted by plaintiff - Proceedings delayed and costs increased by plaintiff's conduct - Order that the plaintiff pay the defendant's costs of proceedings - No issue of principle.

CORPORATIONS - Winding-up - Liquidators – Costs – Liquidators were respondents to application to set aside examination summonses – Whether liquidators’ liability to pay costs to successful applicants to be limited to assets of company available to satisfy their right of indemnity – Whether order may be made for payment of costs directly out of company assets where company not a party to proceedings.

CORPORATIONS [1558] – Winding up – Winding up voluntarily – Stay of proceedings – Grant leave to proceed – Company in voluntary liquidation insured against claim – Leave to proceed granted – Usual terms.

APPEAL AND NEW TRIAL – General grounds – Miscarriage of Justice – Circumstances not involving substantial wrong or miscarriage – Test of “substantial miscarriage of justice” under Supreme Court Rules Pt 51, r23 - APPEAL AND NEW TRIAL – Particular grounds – Misdirection or nondirection – Misconduct of counsel - DEFAMATION – Statements amounting to defamation – Whether self-published community circulars were of a character that encouraged a reader to take them seriously

DEFAMATION – Jury determinations under s.7A(3) – A series of three articles in Daily Telegraph related to Acclaim Education, a college with conduct of which the appellant was associated which coached HSC students – many references to fraud, cheating, investigations and scandal – First article did not name appellant, later articles identified her by name, photographs and adverse personal history as the person referred to – Jury answered questions on whether readers of first article identified her (yes) whether it was reasonable to identify her (no), answered questions on whether imputations relating to history were conveyed in second and third articles (no). Jury found that another imputation which did not relate to the College was conveyed and was defamatory (convicted of bank robberies). The C.A. set aside three determinations that imputations were not conveyed and ordered new trial on those imputations and whether they were defamatory, and refused to set aside two other challenged determinations: decision turned on detailed address to contents of articles. Consideration of – appellate power to set aside jury verdict – proof that identification by reader is reasonable where the person referred to is not named and identification depends on reader’s special knowledge or on reader’s interpretation after seeing identification in later publication – Held if it is incontrovertible from later publication that identification was correct, that fact predominates in assessing whether it was reasonable to make the identification.

Family Provision Act application. Claim by adult son. Legacy awarded. No mattter of principle.

APPEAL - Local Court Decision - Court Attendance Notice - heavy transport loading - breach of mass requirements - reasonable steps defence - start of journey

Catch Words – - Equity – General principles – Equitable defences – Want of clean hands – When available – Requirement of an immediate and necessary connection – Forgery of a bank guarantee by lessee – Funds obtained on loan supported by a forged guarantee applied to improvement of leased land – Whether defence to claim for specific performance of contract upon exercise of option to purchase - Restitution – Unjust enrichment – Right of lessee to recover costs of improvements – Defences – Consideration of whole of dealings – Forgery of a bank guarantee by lessee – Funds obtained by forged guarantee applied to improvement of leased land - Practice – Pleadings – Defence – Striking out – Jurisdiction to order – Defence not so untenable that could not succeed – Order dismissing motion to strike out upheld on appeal partly for different reasons