Cases and authorities

ADMINISTRATIVE LAW - Particular Tribunals or bodies - Building and Construction Industry Security of Payment Act 1999 - Adjudicator's determination - Whether adjudicator failed to consider a submission in an adjudication application - Whether a denial of natural justice - Whether determination void

Appeal from decision of Administrative Decisions Tribunal - amendment of appellate provisions - retail lease claim - unconscionable conduct claim - removal of proceedings to Supreme Court - overlapping jurisdiction between Supreme Court and ADT - statutory construction - mandatory order if statutory requirements are satisfied - onus and evidentiary deficiencies - fresh evidence sought to be relied upon - undertaking to the Court - materiality of error by judicial officer of Tribunal to ultimate decision reached - meaning attributed to words "more effectively and appropriately" dealt with by the Supreme Court

Sentence - two offenders pleaded guilty to manslaughter and one to affray - unlawful and dangerous act - offenders acting in concert - strong subjective features - parity

TIME, WEIGHTS AND MEASURES [2] – Time – Computation of time generally – What days included and excluded in reckoning period – Commencing and concluding days of period – General principle – Number of days to be reckoned exclusively of the first and inclusively of the last day.

CRIMINAL LAW - APPEAL AGAINST SENTENCE - Murder - aggravated sexual assault - armed robbery - aggravated kidnapping - aggravated car jacking - obtain benefit by deception - larceny of a motor vehicle - offences on Form 1 - life sentence imposed - effect of criminal history - application of Veen (No 2) - degree of criminality - felony murder - whether ongoing danger to community - principle of totality - s 21A aggravating factors - whether sentence manifestly excessive

CRIMINAL LAW - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - possession of a firearm - without a licence or permit - unregistered - prohibited firearm - whether the sentencing judge erred in not considering special circumstances - alteration of statutory ration - on conditional liberty - subjective feature - tragic death of son - sixty years of age - whether psychologist’s report considered - dysthymic depressive disorder - good prospects of rehabilitation - no similar prior convictions

The order previously made suppressing the publication of the names of the victims is continued - Criminal law - Sentence - Malicious infliction of grievous bodily harm by infecting with HIV virus - Worst case category - Discount for plea of guilty - Totality - Not manifestly excessive.

CRIMINAL LAW - APPEAL AGAINST CONVICTION FOLLOWING PLEAS OF GUILTY - APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE - administering a stupefying drug with intent to have sexual intercourse without consent - sexual intercourse without consent - common assault - assault occasioning actual bodily harm - leave to withdraw plea of guilty - plea not attributable to genuine consciousness of guilt - miscarriage of justice - manifestly excessive sentence - victim appeared unconscious or semi-conscious - whether free and voluntary consent - arrangements between prosecution and defence counsel concerning plea - whether fit to plead - no evidence of threat to withdraw legal aid - whether sentence manifestly excessive

APPEAL AGAINST CONVICTION – appellant convicted of two counts of sexual assault under s.61I Crimes Act 1900 (NSW) – the trial concerned whether the sexual intercourse was consensual and whether there were two acts of sexual intercourse – accused did not give evidence – whether trial judge erred in failing to direct jury in relation to failure of accused to give evidence – the failure to give an Azzopardi direction in the circumstances of this case led to a miscarriage of justice – appeal allowed – retrial.

LEGAL PRACTITIONER - negligence - solicitor - investment advice and investigations into the person with whom the client was dealing - complex factual dispute about whether solicitor was negligent in investigations into the person with whom the client proposed to deal - fact-finding of primary judge considered in detail and affirmed - COURTS and JUDGES - delay in giving judgment 21 months - consideration of significance of delay - reasons showed primary judge had full and clear understanding and retained clear impressions of witness - fact findings affirmed, appeal dismissed.

RESUMPTION AND ACQUISITION OF LAND – Compensation – Before and After Method – Whether consistent with s 55, Land Acquisition (Just Terms Compensation) Act 1991 – Whether valuation failed to have regard to potentiality of land for subdivision – Where owner used land for development and then holding – Where subject land severed – Whether value of residue increased – Disturbance, Special Value and Severance – Whether compensation could be claimed for purchase of additional floor space equivalent to that which could have been built had resumption not occurred – Whether compensation could be claimed for lost economies of scale

TRADE & COMMERCE – Trade practices and related matters – Misleading and deceptive conduct – Plaintiff, a developer, and defendant, an owner of chain of supermarkets, commenced negotiations for agreement for lease with respect to land owned by plaintiff – Proposed agreement for lease provided for construction of supermarket on plaintiff’s land – Plaintiff expended significant moneys in order to obtain development approval and otherwise prepare land for development – Expenditure made in anticipation of formal agreement for lease with defendant – Defendant encouraged plaintiff’s expenditure – Defendant claimed right to recover costs and loss of profits if plaintiff failed to proceed – Defendant reserved right to withdraw from proposed agreement if it were not signed within twelve months of board approval - Third party developer approached defendant with superior development opportunity – Defendant withdrew from negotiations with plaintiff prior to expiry of twelve months period in order to pursue development opportunity with third party – Whether defendant engaged in misleading and deceptive conduct by representing intention to enter into agreement for lease – Whether defendant engaged in misleading and deceptive conduct by representing that there had been no material change to likelihood of its entering into agreement for lease – ss 4(2), 52 and 84 Trade Practices Act 1975 (Cth) considered – Held that defendant engaged in misleading and deceptive conduct – Whether defendant’s misleading and deceptive conduct causative of plaintiff’s decision to expend moneys on development – Whether plaintiff entitled to damages pursuant to s 82 Trade Practices Act – Whether plaintiff derived benefit of residual value by its expenditure on development – Damages awarded – Calculation of damages - ESTOPPEL – Equitable estoppel – Principles of equitable estoppel – Whether plaintiff entitled to equitable compensation for its expenditure on basis of principles of equitable estoppel – Whether defendant’s representation that it would enter into an agreement for lease with the plaintiff was sufficiently clear to found an estoppel – Whether necessary for plaintiff to assume that defendant was not free to withdraw from anticipated legal relationship – Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 considered – Whether proposed agreement for lease was sufficiently defined for an estoppel to operate – Held that defendant estopped from departing from plaintiff’s assumption that defendant would enter into agreement for lease – Held that plaintiff entitled to equitable compensation – Calculation of equitable compensation.

STATUTES – statutory construction – section 8A Defamation Act 1974 – meaning of “employs” and “persons” in subs (3)(a) – whether “persons” means only “employees at common law” – whether plaintiff has cause of action for defamation. CONTRACT OF EMPLOYMENT – whether plaintiff and its staff intended a contractual relationship – whether plaintiff employed its staff under contracts of employment at common law

ASSOCIATIONS AND CLUBS - members - rights and privileges of members - after disciplinary proceedings against a member, board suspends "privileges of membership" for fixed period - meaning of "privileges of membership" - whether affected member may be candidate for election to board

TRUSTS AND TRUSTEES - constructive and remedial trusts - following and tracing - where court to declare that statutory corporation exceeded statutory capacity and authority in transferring money and that transferee accordingly holds on trust for transferor balance of such money still in hand and property on which money was expended - where part of money applied by transferee by way of loan to other companies and acquisition of shares in one such company - whether transferor may follow or trace money into hands of such other companies - whether the other companies are liable to transferor under knowing receipt limb of Barnes v Addy - whether transferor entitled to equitable compensation from transferee - where transferee gave particular indemnity in breach of trust - whether recipient of indemnity entitled to lien on funds for which transferee accountable to transferor - CORPORATIONS - oppression unfair prejudice etc - where sole member alleges itself to be object of such conduct - conduct sourced in manner in which company structured by sole member upon incorporation - whether court would order winding up where sole member itself able to initiate voluntary winding up

Family Law. Application for adjustment under s20 of Property (Relationships) Act 1984. Orders made. No matters of principle.

CONVEYANCING – Lease - Option to Renew – Agency - whether lessee validly and effectively exercised option – principles relating to notices exercising options - where exercise was by and in name of principal of lessee company addressed to principal of lessor company – Estoppel – Waiver - whether lessee waived, or is estopped from relying upon, notice of exercise of option – where lessor informed lessee that a further notice was required as a matter of formality for the records of lessor company - whether lessor estopped from insisting at any time upon payment of amount properly due under the lease – whether lessor is estopped from claiming arrears of rent - where lessor issued annual notices of rent review which mistakenly understated amount properly due in accordance with lease and lessee paid in accordance with those notices – where lessee alleged that rent reviews were incorrectly calculated and overstated rent properly due – where lessor then recalculated and discovered error understating rents – EQUITY – Relief against forfeiture - whether lessee entitled to relief against forfeiture – where no arrears at date of commencement of cross-claim for possession – where lessee did not admit breach – whether admission of breach essential precondition to grant of relief against forfeiture – DEEDS - whether lessee entitled to renewed lease, omitting from its terms reference incorporating filed memorandum – where reference to filed memorandum inserted by lessor or agent after execution and without knowledge of lessee – COSTS – Relief against forfeiture - whether lessor entitled to some part of costs in respect of claim for relief against forfeiture – where forfeiture first asserted in cross-claim in answer to lessee’s claim to enforce exercise of option.

Procedure – Default judgment – Service – Service by post – proof of service – requirements of affidavit of service by post – prudence of giving notice of application for default judgment.

EQUITY - ESTOPPEL - Proprietary estoppel - Representation that plaintiff could occupy a house for life - Plaintiff gives up housing commission accommodation - Whether representation sufficiently certain - Whether detriment proved, in absence of evidence as to rent paid to Housing Commission and as to security of tenure - Whether estoppel made out - Extent of relief.

CRIMINAL LAW: - Crown appeal against sentence imposed by Court of Criminal Appeal - Criminal Appeal Act, s5DA - respondent's failure to fulfil undertaking to give evidence against co-offender - respondent threatened and assaulted - Court's discretion not to intervene

CRIMINAL LAW - APPEAL AGAINST CONVICTION - hold for advantage - actual bodily harm - unreasonable verdict - inconsistent verdicts - whether verdict on one count necessitated rejection of the whole of complainant’s evidence - length of deliberation - questions asked during deliberation - rational basis for distinguishing verdicts - whether miscarriage of justice

COMMON LAW - summary judgment - possession of land of undischarged bankrupt - no defence disclosed in document filed as Defence - power of Trustee in Bankruptcy to dispose of property or interests in property for benefit of owner - striking out a pleading

CIVIL LAW - costs - conditional costs agreement - award of money on Arbitration not success because of priorities of payments owing - jurisdictional limitation - jurisdiction to overturn or quash a costs assessment certificate which was taken as a judgment of the Court under statute - wide inherent jurisdiction of Supreme Court of NSW - common law exceptions to finality of judgment

PROCEDURE - contempt of court - orders made in absence of party - not shown that orders served on or otherwise brought to party's attention before events said to constitute contempt - statement of charge not framed with particularity - various procedural defects

Practice and Procedure - Discovery - Notice to Produce - Insurance claim or settlement reached with an insurer by party entitled to costs not relevant in terms of being capable of rationally affecting assessment of any of issues to be litigated in gross sum costs application.

Building and Construction Industry Security of Payment Act 1999

CONTRACTS - General Contractual Principles - Offer and Acceptance - Whether mutual assent to contractual terms - Negotiations for contracts of delivery by plaintiff from defendant's warehouses of its customers' goods to consignees - Negotiations partly oral and partly in writing - Negotiations incomplete when deliveries commenced - What were the terms of the contract? - Whether plaintiff entitled to payment of outstanding invoices subject to equitable set-off - Whether defendant entitled under the contract for loss or deemed loss of goods by plaintiff - No principles involved

EQUITY [338] – Equitable remedies – Injunctions – Interlocutory injunctions – Balance of convenience – Adequacy of damages – Whether damages, if awarded, are likely to be paid.

PRACTICE AND PROCEDURE: - separate determination of questions – defence to cross-claim – construction of release in settlement deed – just, quick and cheap resolution of proceedings – reference to and reliance upon settled matters

Damages. Assessment of damages against solicitor who failed to make contracts for sale of real estate interdependent. Consideration of issues of causation.

TORT - nuisance - besetting - union organised picket at plaintiff's warehouse - whether serious question to be tried as to physical obstruction - whether serious questions to be tried as to besetting - balance of convenience - whether individuals or only union should be subjected to interim order

CRIMINAL LAW - 5F APPEAL - validity of indictment - duplicity - latent - patent - meaning of “ contemplation of judicial proceedings” - whether leave to appeal should be granted - principles applying to appeals of interlocutory decisions

INSURANCE – home warranty insurance required by the now repealed and replaced Home Building Act 1989 and the Home Building Regulations 1997 – construction of residential dwelling proceeded on assumption by all parties that such construction was covered by home warranty insurance – Insurer denied liability when building contract discovered to pre-date insurance policy – Whether policy, properly construed in those circumstances, covers appellant’s house construction.

EQUITY – equitable lien – out of court receivers appointed – realisation of assets – Real Property Act land – exercise of Mortgagee’s power of sale – whether receiver entitled to equitable lien over fund for costs incurred in attempted realisation - EQUITY – equitable lien – priority – whether equitable lien takes priority over legal interest - EQUITY – incontrovertible benefit – whether incontrovertible benefit accepted unconscientiously - RECEIVER AND MANAGER – recovery of costs incurred in the care, preservation and realisation of assets – whether an equitable lien or charge over realisation fund where realisation effected by party other than receiver – salvage – whether costs incurred protected, preserved or enhanced the value of the property so as to provide incontrovertible benefit

NEGLIGENCE - workplace accident - foot struck by falling metal tray - application of Rule 14 - res ipsa loquitur - Jones v Dunkel inference - witness not called - possibility that the accident occurred without negligence - effect of appellant’s decision not to allege mechanical defect - onus remains on the plaintiff

CORPORATIONS – Winding up – Winding up in insolvency – Statutory demand – Application to set aside statutory demand – Genuine dispute as to indebtedness – Offsetting and other like claims – Defendant served plaintiff with statutory demand – No dispute between parties that debt the subject of statutory demand presently due and payable – Plaintiff alleged offsetting claim for damages against defendant in amount substantially exceeding debt claimed by defendant – s 459H Corporations Act 2001 (Cth) considered – Whether plaintiff precluded by estoppel or waiver from reliance on offsetting claim – Where plaintiff not precluded from raising offsetting claim – Application granted.

Contempt of Court - refusal of witness to answer questions at his own trial - sentencing - plea of guilty - evidence of duress

FAMILY LAW & CHILD WELFARE - Child welfare other than under Family Law Act 1975 – Adoption - Dispensing with consents of natural parents - Where child relinquished for adoption at birth and anonymity conferred on parents by Korean procedures – Name - Given name - Where approval sought for name including additional (third) forename - Special reasons

Criminal Law - Sentence after conviction of murder.

Sentence

Criminal Law - Practice and Procedure - Children - Publication of name of offender on sentencing - whether in the interests of justice.

Negligence - motor vehicle accident - plaintiff loses control of vehicle approaching right hand bend in wet conditions - smooth rear tyres and inadequate friction supply of road surface - liability of RTA - actual knowledge of failings of road surface - accident history of site - adequacy of signage - contribution of tyres and speed of vehicle to accident - costs

TRUSTS – charitable trusts – difference between cy près scheme and administrative scheme – permissible scope of administrative schemes – administrative scheme to restrict trustees’ activities and thereby enable taxation benefit to be obtained – administrative scheme to clarify extent of trustees’ powers

Costs - Indemnity costs - Calderbank letter

PRACTICE AND PROCEDURE – PLEADING – AMENDMENT – Whether leave should be given to Plaintiff to amend declarations sought after reasons for judgment published. - CONTRACT – CONSTRUCTION – Whether lessor or lessee required by lease to bear cost of rubbish removal from common property.

APPEAL - application for leave to appeal from dismissal of appeals from two Local Court decisions - agistment of horses - whether contract by conduct established - bailment - whether correct determination of standard of care - COMPETENCY OF APPEAL - whether costs included in determining whether matter at issue on appeal amounted to $100,000 - leave refused - (ND)