Cases and authorities

ADMINISTRATIVE LAW – Administrative Decisions Tribunal - procedural fairness – admission of fact made by defendant – whether Tribunal should inform parties and give opportunity to adduce evidence if it decided not to act on the admission – whether plaintiff denied procedural fairness. - STATUTORY CONSTRUCTION – construction of s 55 Freedom of Information Act 1989 and s 124 Administrative Decisions Tribunal Act 1997 – whether these provisions affect powers and functions of the Tribunal under s 63 Administrative Decisions Tribunal Act 1997 – whether Tribunal has a discretion to order access to documents which are exempt documents under Freedom of Information Act 1989

CONTRACT – Proposed program for assignment of receivables under finance leases of luxury motor vehicles – Whether first defendant agreed to provide funding of up to $50 million per annum – Intention to contract – Where parties signed letter containing some terms intending performance to be conditional on execution of formal agreement containing other terms – Whether parties intended any contract prior to execution of formal agreement – Whether agreements inconsistent – Whether earlier agreement discharged an execution of formal contract – Held agreements were complementary - CONTRACT – Where first defendant did not fail to consider any leasing proposal because none was submitted – No actual breach – Anticipatory breach – Whether contract repudiated by first defendant’s advising inability to secure funding – Whether contract terminated or abandoned before repudiation accepted – Held plaintiff terminated contract by accepting first defendant’s repudiation - DAMAGES – Where contract terminable on one month’s notice – Where virtually certain that first defendant would have exercised its contractual right of termination had performance been insisted on – Held damages for loss of bargain limited to loss of profits which would have been derived during period of notice - TRADE PRACTICES – Misleading and deceptive conduct in relation to supply of financial services – Misrepresentations as to availability of funding – Representation that funding had been obtained from securitiser – First defendant failed to disclose tax features of leasing product to securitiser – Securitiser entitled to reject any particular proposal – Securitiser withdrew funding after becoming aware of particular features of finance leases – Whether plaintiff had been advised of first defendant’s non-disclosure of tax features to securitiser – Held representations misleading and were relied on by plaintiff in entering agreements with first defendant - DAMAGES – Whether plaintiff lost opportunity to secure finance for finance leases from other financiers – Held loss of opportunity no more than speculative - DAMAGES – Plaintiff entitled to recover expenditure on program in reliance on representations, less income derived and contractual damages claim – what loss proved - PRINCIPAL AND AGENT – Whether directors liable as primary contravenors of s 12DA of ASIC Act for misrepresentations in letter signed by one of them - ACCESSARIES – Whether director liable as an accessary.

Appeal against costs assessor's decision - whether costs agreement was valid - translation fees

CONVEYANCING [114] – Relationship of vendor and purchaser – Position of parties after completion – Vendor’s lien – Generally.

CORPORATIONS – Arrangements and reconstructions – Schemes of arrangement or compromise – Application for order pursuant to s 411(4)(b) Corporations Act 2001 (Cth) approving scheme of arrangement between applicant and shareholders – Where scheme of arrangement approved by shareholders by special resolution – Application granted - CORPORATIONS – Managed investments – Trust deed or constitution – Members of trusts which are managed investment schemes passed resolutions approving, inter alia, merger of trusts with another trust – Resolutions required amendments to constitutions of trusts – Application by trustee of trusts for orders that is justified in acting upon resolutions passed by members of trusts – Whether amendments to constitutions of trusts were within powers of alteration contained in constitutions of trusts and in s 601G Corporations Act – Where resolutions of members of trusts commanded overwhelming support – Application granted.

Mortgages over family home - application of principles in Yerkey v Jones to a case outside that of a guarantee - Contracts Review Act 1980 - whether loan agreement and mortgage unjust - asset lending - unfair pressure by lender

CORPORATIONS – Winding up – Liquidators – Remuneration – Expenses out of trust assets – First defendant was formerly trustee of unit trust but was removed on application of beneficiary – New trustee appointed – New trustee ceased to operate business of trust and was appointed receiver to assets of trust – After an account, new trustee terminated trust and paid funds held by him into court – Application by first defendant and liquidator of first defendant for orders directing distribution of moneys paid into court – Whether liquidator of first defendant entitled to funds in court on basis of first defendant’s right of indemnity in trust deed – Whether liquidator of first defendant entitled to funds in court on basis of right to indemnity from trust assets – Held that liquidator of first defendant entitled to balance of fund to extent able to demonstrate remuneration and expenses relate to administration of trust.

REAL PROPERTY – DEFECT IN TITLE – Whether drainage pipeline running through centre of property a latent defect in title. - CONTRACT – ELECTION – Whether purchasers had unequivocally elected to affirm contract – s.55(2A) – market value of land much less than contract price – whether just to require return of deposit.

Alleged breach of agreement between parties for the provision of editing work - commencement of proceedings for damages (Ordinary Statement of Claim claimed an amount for unliquidated damages) - motion for discovery - dispute as to compliance with discovery order - application to Magistrate to strike out defence and enter judgment - defence struck out and judgment entered for the sum claimed in the Ordinary Statement of Claim - appeal - discretionary power of Court - cross examination on affidavit verifying discovery - Rules require the entry of judgment with damages to be assessed - evidentiary deficiency to support amount of the judgment entered - judgment set aside - matter remitted to Local Court for assessment according to law.

CONTRACT - Orders giving effect to decision [2006] NSWCA 290

NEGLIGENCE - police officer suffering post-traumatic stress disorder - duty of care - whether the State of New South Wales breached its duty of care - whether appropriate training was provided - causation. ND

PRACTICE AND PROCEDURE - motion to strike out appeal - failure adequately to identify grounds of appeal - contravention of Pt 51 r 11 of the Supreme Court Rules 1970. ND

[FARM DEBT MEDIATION] - whether plaintiffs are able to bring proceedings for rectification of a Deed entered into after successful Farm Debt Mediation - policy of the Farm Debt Mediation Act 1994 - relationship between s 15 (excluding evidence) and s 16 (prohibiting disclosure) of the Act - [WORDS AND PHRASES] - meaning of "lawful excuse" in s 16(e) of the Act.

CONTEMPT OF COURT - refusal by witness to take oath or affirmation to give evidence at criminal trial - plea of guilty - approach to sentencing

PRIVATE INTERNATIONAL LAW - Stay of proceedings - Forum non conveniens - Indonesian parties to proceedings only one of whom resident - Allegations that properties in New South Wales and Australian bank accounts are common marital property under Indonesian law to be divided between spouses on divorce - Forced heirship rules that children of deceased entitled equally to his estate regardless of contents of will - Allegations of implied obligations based on uncodified Indonesian custom, the efficacy of Indonesian court business, the prospect of embezzlement and to permit the courts to act in accordance with the dictates of justice and Indonesian law - Allegations that first defendant sought to deceive the Indonesian courts by non-disclosure of the Australian assets in Indonesian proceedings to divide the common marital property - Whether connecting factors demonstrated that the local forum is clearly inappropriate as vexatious or oppressive

EXECUTORS AND ADMINISTRATORS – trust account statement – filing of accounts and production of documents sought – request for security of costs for preparation of accounts – distribution of funds from estate – trustee under duty to beneficiaries to give them complete and accurate information as to the administration of the trust – beneficiaries right to seek disclosure of trust documents – trustee bound to keep accounts – failure to preserve or to produce trust documents – inadequate explanation of what happened to trust documents – failure to make reasonable investigations – absolute right of beneficiary to inspect – trust records wrongfully disposed of – a court of equity will not make orders that are futile – breach of fiduciary duty – infringement of self-dealing rule – a trustee who commits a breach of trust may lose his right of reimbursement or indemnity

MORTGAGES – Mortgages and charges generally – Remedies of chargee – Power of sale – Mode of exercise of power – Injunctions to restrain sale – Application by plaintiff to restrain first defendant from exercising power of sale pursuant to charge – First defendant was deed administrator under deed of company arrangement – Deed of company arrangement provided for sale of a company’s business and for the purchaser to grant a charge over its assets to secure payment of creditors under deed – First defendant took possession of charged assets – Whether charge secured any moneys – Challenge to mode of sale – No payment into Court – Whether damages an adequate remedy – Balance of convenience – Application for injunction refused.

Specific performance - whether directions for implementation of order for specific performance may be applied for by notice of motion in the same proceedings or whether it is necessary to bring a new action.

CONTRACT – Recovery of a specified sum of money under a repudiated contract settling litigation between the parties – competing contractual principles in McDonald & Anor v Dennys Lascelles Ltd (1933) 48 CLR 457 at respectively 476 and 477 in relation to recovery of damages for breach – whether contract was predominantly to settle litigation with an uncompleted sale being merely incidental and whether the occasion had yet arisen requiring transfer of property pursuant thereto – effect of failure to complete sale by party seeking to claim damages and claiming to be ready, willing and able to complete sale – whether party seeking to recover damage had an accrued right to receive payment of a specified sum before contract was repudiated by the other party and that repudiation accepted – anticipatory breach – meaning of the word “upon” payment of a sum – accord and satisfaction and distinction between an accord executory and an accord predicated upon the doing of the thing promised – distinction between damages for loss of bargain and recovery of a stipulated sum.

Substantial truth

BUILDING AND CONSTRUCTION – Building and Construction Industry Security of Payment Act 1999 - where new payment claim incorporates matters that have been the subject of prior adjudication – where plaintiff seeks to restrain defendant from proceeding with any adjudication application based on that new payment claim – where plaintiff asserts that prior adjudication determination is void – where any hypothetical subsequent adjudicator is bound by s 22(4) - where defendant will be barred by s 13(4)(b) of the Act from filing an additional payment claim if restrained until likely final hearing and decision – whether interlocutory relief appropriate. - COSTS – where plaintiff brought application in a peremptory way – where nature of debate substantially altered – whether costs in the proceedings – no question of principle.

CORPORATIONS - applications for winding up and appointment of provisional liquidator - defendant seeks transfer of proceedings to Federal Court of Australia, Victoria Registry - company has one asset and from its incorporation did virtually nothing - where principal place of business situated - where relevant "events" occurred - where relevant individuals resident - other proceedings extant in Federal Court but questions of damages and remedies only remaining for determination - whether any clear preponderance in favour of Victoria - need for applicant to show positively that alternative court "more appropriate" forum

ADOPTION - non-citizen child more than one year old - change of given names sought - whether special reasons related to best interests of child shown

Succession - Wills, Probate and Administration - whether deceased had testamentary capacity at time of execution of wills - whether deceased suffered from delusions which influenced her testamentary dispositions - whether deceased knew and approved of wills.

Application for transfer of proceedings to Supreme Court - greater economic loss claim than first envisaged - consent by defendant to unlimited jurisdiction of District Court - threshold requirements to be satisfied - discretionary power of Court to order transfer - District Court more appropriate forum - delay in making of application - delay in getting case heard in Supreme Court.

TOWN PLANNING AND DEVELOPMENT – development application – development other than designated development – form of application – documents to accompany application – statement of environmental effects (SEE) – requirements – where application not accompanied by SEE pursuant to Environmental Planning and Assessment Regulation 2000 – consent granted by development authority – whether consent invalid – distinction between designated and non-designated development – whether SEE is an “essential condition”, “essential preliminary” or “condition precedent” to the determination of a development application – significance of species impact statement – Environmental Planning and Assessment Act 1979 – Environmental Planning and Assessment Regulation 2000 – construction of requirements

LEGAL PRACTITIONERS - appeal to Supreme Court from refusal by Legal Practitioners Admission Board to declare Plaintiff to be of good fame and character and otherwise suitable for admission as a legal practitioner - appeal by way of de novo hearing - role of Board on hearing of appeal - earlier criminal proceedings against Plaintiff for two alleged offences of perverting the course of justice contrary to s.319 Crimes Act 1900 - Plaintiff acquitted on one count and (following appeal) Crown determines not to proceed further on second count - approach to resolution of disputed factual issues on appeal - onus and standard of proof - whether Plaintiff made false statutory declaration and gave false evidence in 1996 wrongly claiming that she was driver of motor vehicle at time of red-light traffic offence - meaning of "good fame and character" - duty of candour on application for admission - finding on appeal that Plaintiff gave glaringly improbable evidence - held Plaintiff not of good fame and character and otherwise suitable for admission as legal practitioner

PROCEEDS OF CRIME: - Commonwealth legislation - whether jurisdiction to entertain application for allowance for legal expenses out of restrained assets

TAXES AND DUTIES - Stamp duties - Instrument of transfer of land - $10 payable under the Duties Act 1997, s 54(3A) if as a consequence of the appointment of a new responsible entity of a managed investment scheme if Chief Commissioner satisfied that only beneficial interest acquired is by new responsible entity solely because of its appointment - Whether Chief Commissioner should have been satisfied - Whether Court can substitute its satisfaction under Taxation Administration Act 1996, s 101(1)(b) - Observations about the nature of the interests transferred - Chief Commissioner submitted unit holders held no equitable interest and only entitled to due administration - Whether a "beneficiary" with no equitable interest could obtain a decree for general administration under old Chancery practice

Wrongful detention. Compensation. Inquiry to assess damage to or diminution in value of a yacht.

CRIMINAL LAW - CROWN APPEAL - CULTIVATE PROHIBITED DRUG - large commercial quantity - cannabis - manifestly inadequate - relevance of sentences imposed on co-offenders - role in the cultivation - degree of control - expectation of profit - mind of the enterprise - role in recruitment - assistance to authorities - offences on Form 1 - whether starting point of sentences refected objective criminality

CRIMINAL LAW: - application for leave to appeal against sentence - Commonwealth charges of escaping from lawful custody, causing harm to a public official - proportion of recognizance release order to head sentence - whether sentences manifestly excessive

These proceedings are subject to the limitations upon publication and/or broadcasting imposed by s 11(1) of the Children (Criminal Proceedings) Act 1987 - Criminal law - Conviction appeal - Alleged unreasonableness of jury verdicts - Rational basis to differentiate verdicts.

SENTENCING – Robbery in company – whether the custodial sentence should have been postponed until completion of drug rehabilitation program – whether there had been a pre-judgment of issue so as to demonstrate bias – whether sentencing guidance inflexibly applied – parity of sentence with co-offender.

SENTENCING – failure to sentence separately for each offence – whether Court of Criminal Appeal had power to deal with outstanding charge - SENTENCING – cultivation of commercial quantity of marijuana – whether starting sentence of 12 years manifestly excessive

INSURANCE - income continuation insurance - construction of contract of insurance - meaning of "usual occupation" - contractual definition of "remunerative work"

EQUITY [338] - Equitable remedies - Injunctions - Interlocutory injunctions - Appropriate balancing exercise.

CORPORATIONS - registered managed investment scheme - responsible entity as trustee - resort to equitable jurisdiction by way of application for judicial advice - TRUSTS AND TRUSTEES - application by trustee for opinion, advice or direction of court - where proceedings on foot against trustee alleging past breaches of trust and statutory contraventions - trustee seeks judicial advice whether it would be justified in defending proceedings - proceedings concern trustee's personal position and responsibility - proceedings irrelevant to management and administration of trust estate - judicial advice refused

CORPORATIONS - winding up in insolvency - presumption of insolvency through failure to comply with a statutory demand - offsetting claim - meaning of "offsetting" - effect of contractual provision excluding counter claims - CONTRACTS - settlement of building dispute - parties agree that "a payment obligation is to rank in priority" before any entitlements of payer to receive monies in connection with building project - proper construction

CORPORATIONS – Winding-up – Winding-up in insolvency – Application by Australian Securities and Investments Commission (ASIC) for orders that first, second, fifth, sixth, seventh, eighth and ninth defendants be wound up in insolvency – Whether corporate defendants should be wound up in insolvency – Where report of provisional liquidator discloses that corporate defendants insolvent – No question of principle – Application granted.

CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders – Applications for orders under s11(4B) of the Children (Criminal Proceedings Act) 1987 are confined to the time and court exercising the sentencing discretion. - CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders - Children (Criminal Proceedings Act) 1987, s11 – unnecessary for courts to make orders to achieve the same objective as s11 – protection of identity of child. - CRIMINAL LAW - PRACTICE AND PROCEDURE – Publication Orders – Non-publication orders and pseudonym orders can operate alongside s11 if they are made to achieve other objectives.

REAL PROPERTY - EASEMENTS - Construction and effect - Contemplation of parties as to use of easement - Not to be considered separately from construction of the easement having regard to the circumstances relevant to that construction - Not otherwise to be the subject of extrinsic evidence - Factors relevant to the construction of easements, including the requirement that the easement be for the benefit of the dominant tenement.

GAMING AND WAGERING - poker machine entitlements - whether lease covenant prohibits transfer - LIQUOR LAW - other matters - poker machine entitlements - whether lease covenant to use best endeavours to maintain and extend the business prevents lessee from seeking transfer of poker machine entitlement - nature of "the business of hoteliers" - meaning of "best endeavours" clause - LANDLORD AND TENANT - covenants - to use best endeavours to maintain and extend the business - to carry on the business of a hotelier

Criminal practice and procedure - sentencing - Corporations Act - Corporate dishonesty - alteration of financial records - general deterrence - white-collar crimes - custodial sentence - guilty plea - Periodic Detention - unsuitability of suspended sentence

RESTRAINT OF TRADE - employment contracts - restraint upon involvement in competing business after cessation of employment - whether particular businesses in competition - extent to which such restraint valid as legitimate protection for former employer

PROFESSIONS AND TRADES - lawyers - entitlement to "fruits of the action" lien

PROFESSIONAL NEGLIGENCE - LIABILITY - MEDICAL NEGLIGENCE - general practitioner - rural practice - DAMAGE - brain injury - cardiac arrest - BREACH - diagnosis of recurrent syncope - cardiac cause of syncope - apprpriate diagnostic investigation - facilities readily available - long QT syndrome - causation - chance of investigation revealing long QT interval - EXPERT EVIDENCE - general practitioners - cardiologists - scientif proof and legal standard of proof - role of hindsight - effect of s 5O of the Civil Liability Act 2002 (NSW) - LOSS OF A CHANCE in medical negligence

BUILDING AND CONSTRUCTION - where plaintiff's payment schedule and adjudication response asserted that no contract provision supported the first defendant's claim - whether adjudicator was entitled or required to consider the relevant provisions of the contract under s 22(2)(b), (d) of the Building and Construction Industry Security of Payment Act 1999 (NSW) - where adjudicator found claim to be supported by the contract - whether natural justice required adjudicator to provide the plaintiff with an opportunity to respond - where adjudicator considered plaintiff's adjudication response - where adjudicator did not expressly state reasons for rejecting plaintiff's approach - whether adjudicator acted impartially - whether adjudicator lacked good faith - application of Brodyn v Davenport [2004] NSWCA 394 - whether adjudication determination void