Cases and authorities

Appeal on question of costs - lack of material - leave - material error on point of law.

CRIMINAL LAW: Sentence - murder - manslaughter through excessive self-defence, malicious wounding - separate incidents - pleas of guilty - special circumstances - partial accumulation - totality

CONVEYANCING [114] – Relationship of vendor and purchaser – Position of parties after completion – Vendor’s lien – Declaration of and enforcement by judicial sale - Form of orders.

CONTRACTS – General contractual principles – Construction and interpretation of contracts – Plaintiff and first defendant entered into joint venture – Pursuant to joint venture, plaintiff and first defendant formed second defendant as corporate vehicle – Second defendant acquired several lots of land in New South Wales – Dispute arose – Plaintiff commenced proceedings for dissolution of joint venture – Proceedings resolved by agreement between plaintiff and first defendant – Agreement entitled each party to specified lots of land – First defendant directed that lots be transferred to nominee – Whether, on proper construction of agreement, first defendant entitled to direct that lots be transferred to nominee – Held that first defendant entitled to make such a direction – Whether, on proper construction of agreement, joint venture was terminated by agreement – Held that joint venture was not terminated - CONTRACTS – General contractual principles – Breach – Anticipatory breach – Whether first defendant committed breach, or anticipatory breach, of joint venture by directing that lots be transferred to nominee – Where transfer of lots to nominee would leave first defendant without assets – Where first defendant remains liable to pay debts incurred by joint venture – Held that nomination an anticipatory breach of contract – Orders made restraining second defendant from transferring lots to first defendant’s nominee.

CORPORATIONS – Winding-up – Termination of winding-up – Director of company now being wound up brought application to terminate winding-up – Application dismissed – Director brought second application to terminate winding-up – Director seeks adjournment of application – Whether director entitled to adjournment of application – Where application brought prematurely – Where adjournment of application would be disruptive of winding-up and wasteful of costs – Adjournment refused – Application to terminate winding-up dismissed.

Costs - contested probate proceedings on grounds of lack of testamentary capacity and lack of knowledge and approval of will - whether in the circumstances unsuccessful plaintiff should be ordered to pay costs - offer of compromise.

Criminal Law - Sentencing - Parity- whether refusal to find special circumstances resulted in a justifiable sense of grievance - whether the avoidance of disparity can amount to "special circumstances" justifying a reduction in the non-parole period.

Defamation — jury at first trial finds imputation that plaintiff a shonky operator true — new trial ordered of second imputation that plaintiff could not be relied upon to pay his employees money due to them — relevance in new trial of jury finding that the first imputation was true — meaning of word “shonky” — issue estoppel on credit issue. Issue on malice raised for the first time at end of new trial after counsel for defendant finished address — elapse of fourteen years since publication — not in plaintiff’s particulars — whether plaintiff should be permitted to raise issue at that late stage — obligation to give particulars.

TORTS [171]- Nuisance- Rocks falling from defendant's land onto common land of body corporate- Not caused by defendant- Continued nuisance- Mandatory quia timet injunction- Duty to take reasonable care to abate nuisance- Scope of duty based on facts and circumstances- Defendant has limited finances- Rocks also falling from plaintiff's property- Plaintiff has not mitigated damages- Substantial cost to defendant of abating nuisance- Uncertain effectiveness- Defendant not to take all necessary steps, only those that are reasonable in the circumstances- Defendant to contribute some funds and to act reasonably in co-operation with plaintiff.

Injunction to restrain lawyers from acting - preserving integrity of judicial process - equitable principles - undertakings to protect confidential information - duty of practitioners in relation to national security information - criminal trial - right of accused to legal representation of his choice

COSTS - unsuccessful appeal by Plaintiff against refusal of Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - Board applies for costs - role of Board on hearing of appeal - nature of findings made concerning Plaintiff's evidence - finding that significant parts of Plaintiff's evidence were glaringly improbable - costs order made

PROCEDURE – Supreme Court procedure – funds in court – effect of order directing Registrar to pay out a particular sum of money – circumstances in which a trial judge can review his or her own order or decision – permitting re-opening of argument after judgment delivered

CORPORATIONS - winding up - application for order terminating winding up - no evidence from qualified accountant of company's financial position - principals apparently accept that company insolvent - related party creditor offers court undertaking of indefinite duration not to require payment by company until all other creditors paid - whether sound basis for terminating winding up

CORPORATIONS – Winding-up – Liquidators – Provisional liquidators – Appointment – Application by plaintiff, a shareholder of defendant, for orders that provisional liquidator be appointed to defendant and defendant be wound up pursuant to s 461(1)(e) or 461(1)(k) Corporations Act 2001 (Cth) – Plaintiff complains that defendant preparing to declare dividend which would leave defendant unable to pay remuneration and expenses of any liquidator appointed to defendant – Whether provisional liquidator should be appointed – Where defendant proffers undertaking not to declare any dividend or make any other payment to shareholders – Where application brought despite existing agreement that defendant be wound up voluntarily – Where appointment of provisional liquidator likely to be less timely and cost-efficient than voluntary winding-up – Application dismissed.

INJUNCTIONS – EX PARTE – DISCLOSURE – Whether plaintiff had made full and frank disclosure of material adversely affecting its case when seeking ex parte injunction.

Sentence

Variation of Interlocutory Injunctions - No question of principle.

NEGLIGENCE – public authority exercising statutory regulatory powers – subdivision control. LOCAL GOVERNMENT – subdivision control – liability of local government authority for negligence in exercise of statutory powers – Sutherland S.C. approved subdivision in 1977 on conditions which required construction of drainage system between new road and bay and creation of easement in gross in favour of SSC – subdivided land sold by developer and houses erected – in heavy rain in 1998 large quantity of water escaped from drainpipes which by then were defective and caused slippage in a large deposit of fill in the rear yard of Lot 8, the lot subject to the easement – slippage of fill removed support from a large deposit of fill in the rear yard of Lot 7 owned by the respondent Mrs Becker – overflow was caused by combination of exceptionally heavy rain, lodgement of plywood board inside drain and defective joints in pipeline which allowed escape of water – Mrs Becker sued SSC for damages related to slump of fill in her rear yard – consideration whether SSC had duty of care to Mrs Becker in approving subdivision and specification of pipeline – concept of control – whether property damage or economic loss – entitlement to lateral support – vulnerability – reliance – general reliance – operational and policy activities – Ultramares – held, no duty of care NUISANCE – dominant owner of easement in gross over drainage pipeline – nuisance alleged in failure to inspect repair or maintain pipeline – fault as an element in liability for nuisance – awareness of nuisance – whether SSC knew or should have known of defects in pipeline – consideration of facts alleged to show knowledge – held that SSC was not negligent and was not liable in nuisance.

PROPERTY (RELATIONSHIPS) - De Facto relationship - adjustment of property s.20 - valuation questions relating to parties' shares in private company - significance of Directors' Loan Account where retained profits were not distributed as dividends - Trial Judge did not treat Directors' Loan Account as a liability in reality - Trial Judge's adjustment affirmed with minor clarification - decision on facts.

REAL PROPERTY – sale and development – agreement – construction – whether agreement in nature of joint venture – whether formation of “joint venture company” essential for finding of joint venture agreement to develop property – whether sufficient indicia of joint venture agreement – CONTRACT – intention to contract – uncertainty – incompleteness – principles

NEGLIGENCE - motor vehicle collides with motor bike while exiting car park and crossing footpath - postal motor bike on footpath ARR 288(1) and RT (STM)(RR) Reg 32(b) - rider injured - neither driver nor rider observed the other until almost at collision - on consideration of evidence and findings, decision of DCJ that there was no negligence affirmed. Decision on facts.

PROCEEDS OF CRIME: - application for exclusion under s25 of the Criminal Assets Recovery Act - large amount of cash - whether proved that none of it was ilegally acquired property.

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – adoption – construction of test for dispensing with consent of birth parent, in section 67(1)(c) Adoption Act 2000 – change of given name by former surname becoming a middle name – otherwise no question of principle.

CONSTITUTIONAL LAW – Restrictions on Commonwealth and State legislation – claimed inconsistency of Commonwealth and State controlled operations legislation – whether Parts 2 and 3 Law Enforcement (Controlled Operations) Act 1997 (NSW) (“the LECO Act”) is invalid as being inconsistent with laws of the Commonwealth within the meaning of s 109 of the Commonwealth Constitution (“the constitutional question”) – the terms of the State Act do not directly or expressly purport to make lawful contraventions of the Commonwealth law – the terms of the State Act are to be construed as operating so as not to exceed the legislative power of State Parliament – the State Act does not purport to operate to remove liability under Commonwealth law. Part 1AB of the Crimes Act 1914 (Cth) with respect to controlled operations does not make exhaustive provision with respect to such operations and does not "cover the field" of regulation for the same - ADMINISTRATIVE LAW – judicial review at common law – whether the Court has jurisdiction to determine the question whether any conduct proposed to be authorised and engaged in pursuant to controlled operation authorities issued under the LECO Act is/was likely to seriously endanger the health or safety of any participant or any other person, or to result in serious loss or damage to property, within the meaning of s 7(1)(b) of the LECO Act (“the jurisdictional fact question”) – s 7(1)(b) does not constitute a jurisdictional fact satisfaction of which is an essential prerequisite to the making of an application for a controlled operation authority – consideration of s 7(1)(b) is performed as an intrinsic part of the process of evaluation of an application for a controlled operation authority - EVIDENCE – admissibility of expert evidence as to illicit drugs for the purposes of the judicial review hearing – whether the expert evidence is relevant – expert evidence proceeds on the basis not merely of supply but upon the “potential” that the drugs supplied will cause harm “for some users” – the expert evidence goes beyond the fact in issue and therefore goes beyond the scope of the controlled operation authorities – the evidence is not relevant to or admissible in the proceedings.

ABORIGINALS – general – construction of “Aboriginal person” in Aboriginal Land Rights Act 1983 (NSW) – requirement of lineal descent from inhabitants of Australia immediately before European settlement – FAMILY LAW AND CHILD WELFARE – CHILD WELFARE OTHER THAN UNDER FAMILY LAW ACT 1975 AND RELATED ACTS – adoption – construction of transitional provisions of Adoption Act 2000 – meaning of “placed with a view to adoption” – operation of Aboriginal child placement principles – operation of special consent provisions concerning placement of Aboriginal child for adoption – definition of “Aboriginal” in Adoption Act 2000 – PROCEDURE – Supreme Court procedure – Judge appointing himself as examiner – circumstance in which that Judge can dispense with requirement for concurrence of the senior judicial officer

CRIMINAL LAW - application for voir dire in support of objection to evidence as being improperly obtained for purpose of s.138 Evidence Act 1995 - similar voir dire in advance of earlier trial of accused on same grounds - lengthy oral evidence given on voir dire - objection failed at earlier trial and evidence admitted - whether Crown witnesses ought be recalled to give evidence on voir dire before retrial - whether transcript of evidence given on earlier voir dire ought be received

EQUITY - equitable compensation - requirement that fiduciary account for gains - whether gains should be reduced by losses - EQUITY - equitable compensation - basis on which interest should be included in equitable compensation - EQUITY - vesting order - whether vesting order should be made in favour of beneficiary - where order sought refers to specified parcel of land and "all other property and assets of" trustee - where no refusal of trustee to transfer - where extent of trustee's right to resort to trust fund for indemnity not yet quantified - CORPORATIONS - winding up - by the court - where company resolves by special resolution that it be wound up by the court - whether court has discretion - relevance of availability of voluntary winding up by special resolution - whether any reason not to exercise discretion

CORPORATIONS - presumption of insolvency through failure to comply with statutory demand - plaintiffs' application to set aside statutory demand dismissed, subject to short extension of compliance period - plaintiffs then apply for further extension of compliance period, to operate during prosecution of appeal against dismissal of application to set aside demand - whether plaintiffs have reasonably plausible grounds of appeal - whether appeal would be rendered nugatory if compliance period were not extended - relevant discretionary considerations - appropriate form of order

WILLS [323]- Family provision- Claim by able-bodied ex-nuptial adult son against father's estate- Whether insufficient provision- Few needs- Little contact during deceased's life- Little evidence of close relationship- Bare fact of paternity- Son fails to establish case for provision- Claim dismissed.

INSURANCE -Accident and Sickness Insurance - Superannuation trustee holding insurance policy covering total and permanent disablement of scheme members including plaintiff - Liability of insurer dependent upon its opinion that plaintiff totally and permanently disabled as unable ever to engage in any occupation or work that the plaintiff was reasonably capable of performing by reason of education, training or experience - Reassessment of reports on file without further inquiry - Whether insurer addressed the wrong question - Rejection of opinions of doctors favourable to plaintiff including that of doctor to whom plaintiff referred by insurer - Whether opinion reasonable, in good faith and fair to the plaintiff - Whether definition of total and permanent disablement unusual in terms of the Insurance Contracts Act 1984 (Cth), s 37 - Whether the insurer's reliance on the definition was to fail to act with the utmost good faith in terms of the Insurance Contracts Act 1984 (Cth), s 14

Sentence appeal by Crown - malicious infliction of grievous bodily harm under s35(2) Crimes Act 1900 - presence of knife - use of cricket bat - whether disregard of public safety - suspended sentence - ommission of two-step process - whether error of law - whether sentence excessively lenient

Criminal Law - Offences - Crimes Act s 86 - Kidnapping - history of the offence - whether "take or detain" creates two offences - refusal to admit evidence of doctor's report - whether miscarriage - whether indictment gave rise to double jepoardy or otherwise an abuse of process.

MOTOR VEHICLE ACCIDENT – breach of duty – standard of care required of driver – whether driver had sufficient control of speed and direction of vehicle to react to events within vicinity of car – dark wet conditions in built-up area – whether driver ought to have been driving slower than speed limit - DUTY OF CARE – driver of motor vehicle – whether reasonable response taken to risk of injury – whether failure to keep proper lookout - CONTRIBUTORY NEGLIGENCE – evaluative exercise – insufficient regard by respondent for own personal safety - REASONS FOR JUDGMENT – reasoning process – whether trial judge engaged in hindsight reasoning – whether trial judge’s findings contained internal inconsistencies

LAND VALUATION – Compulsory Acquisition – Determination of Market Value – Where land cannot be sold – Whether rule in Corrie v MacDermott applies to valuation under the Land Acquisition (Just Terms Compensation) Act 1991.

ADMINSTRATIVE LAW – Particular Tribunals – Powers of ADT to interpret provisions in conformity with the Commonwealth Constitution – Administrative Decisions Appeal Act, s115(1) – Interpretation Act, s31(1) - CONSTITUTIONAL LAW – COMMONWEALTH – Effect of registration scheme which gives judicial force to a State tribunal decision containing consideration of the Commonwealth Constitution – Impermissible exercise of Federal jurisdiction – Constitution, Chapter III

NEGLIGENCE – appellant struck by motor vehicle driven by respondent – appellant “stumbling” across roadway – whether respondent negligent in increasing speed on approaching appellant – reasonable steps required to react to danger of appellant’s presence on roadway – whether trial judge erred in breaking events down into phases - NEGLIGENCE – Civil Liability Act – construction of s 49 – does not deny duty of care or liability for damages toward intoxicated person – does not lower standard of care owed to intoxicated person – does not incorporate s 50 of Civil Liability Act - CONTRIBUTORY NEGLIGENCE – appellant intoxicated at time of injury – trial judge’s finding of 75% contributory negligence upheld

WORKERS COMPENSATION - whether commencement of proceedings to recover damages in respect of a work-related injury on 21 November 2001 in contravention of s151C of the Workers Compensation Act 1987, constituted an election for the purposes of s151A, precluding the worker from claiming permanent lump sum compensation under that Act STATUTORY INTERPRETATION - transitional provisions - whether by virtue of cl 9(1) of the transitional provisions in Schedule 6, Part 18C of the 1987 Act, the new s151A of the 1987 Act inserted by Schedule 1 of the Workers Compensation Legislation Further Amendment Act 2001 applied. (D)

TORTS - conversion - bailment - breach of agreement - whether there was a right to immediate possession - whether contract provisions overrode common law rights of bailor - CO-MIXTURE - scaffolding of plaintiff mixed with other scaffolding - mixing not fault of plaintiff - rights of co-owners in the whole - conversion by co-owner

WILLS PROBATE AND ADMINISTRATION - document propounded under s18A - challenge to signature - evidence from defendant signature not that of deceased - no evidence of plaintiff that it was

PROCEDURE – Supreme Court procedure – award of interest on the principal amount of a judgment – contractual obligation to pay a sum of money – when cause of action accrues – SUCCESSION – EXECUTORS AND ADMINISTRATORS – specific legacy – entitlement to intermediate income – rationale for rule – CONTRACT – vendor and purchaser – contractual obligation on purchaser to pay certain legal costs and Capital Gains Tax to vendor simultaneously with transfer – construction of such a clause – CONTRACT – vendor and purchaser – delay in settlement – as from what date one party entitled to damages for delay from the other – PROCEDURE – costs – assessment in a gross amount – when appropriate – CONTRACT – otherwise, questions of construction of a particular contract

CRIMINAL LAW - application for leave to appeal against severity of sentence - supply of prohibited drug (methylamphetamine) - plea of guilty - special circumstances - subjective circumstances - no error in approach of sentencing judge

APPEAL – severity of sentence – applicant appeared unrepresented – offence committed while applicant on bail – expression of remorse taken into account by sentencing judge – expression of regret on application – post-sentence remorse and willingness to apologise to victim not matters relevant to questions of error in the sentencing proceedings – no error demonstrated in sentencing proceedings.

TORT – Defamation – Whether jury verdict that appellant had published nine matters should be set aside as perverse in relation to a s7A trial – similarities and differences between emailed and other communications as going to whether there was a common author – principles applicable to setting aside a jury verdict – perverse verdict as to one out of the nine communications.

PRACTICE AND PROCEDURE - Making of orders incidental to dismissal of application for leave to appeal.

TORTS- Negligence- Duty of care- Scope of duty- Armed robbery at TAB agency operated by franchisee- Employee injured- Whether failure to ensure suitable and safe workplace, system and training- Whether duty extends to protecting employee from criminal acts of third parties- Whether special relationship between franchisee or TAB Ltd and employee- Robbery foreseeable- Capacity to reduce risk considerably- Causation- "But for" the protective measures that may have been actioned, the robbery could still have taken place- Plaintiff fails on causation.