Cases and authorities

Contract - joint venture for development of land - breaches in some respects by one party - other party terminated for repudiation - whether breaches showed intention to perform contract only in a manner substantially inconsistent with obligations and not in any other way - whether breaches where breaches of intermediate terms sufficiently serious to entitle termination - consideration of what amounts to repudiatory conduct - and of whether a term is essential or non-essential.

COSTS – Contested probate application on grounds of want of approval and undue influence – whether unsuccessful party should pay costs of the proceedings – whether exceptions to ordinary costs rule established – offer of compromise and Calderbank offers – whether costs sanctions apply in proceedings for grant of probate where offers not accepted – whether circumstances justify indemnity costs

CRIMINAL LAW - COSTS OF APPEAL - appellant successful on grounds not directly raised - Magistrate excluded a relevant matter from exercise of discretion - error in law - challenge to jurisdiction of the Court to award costs against Commonwealth - Local Court matter not yet reached final determination - costs on appeal distinguished from costs on trial - costs need not necessarily follow the event - each party to pay own costs

CIVIL LAW - DEFAMATION - imputations found by jury - imputations known by plaintiff to be false - credit issues - aggravation of damage - renown of plaintiff affects damage occasioned - defamation damage not higher than limit set by statute on non-economic damage in personal injury matters - no purpose of punishment in damages awarded - damages for hurt and distress - damages for damage to reputation - vindicate plaintiff to those who read or hear of judgment

CRIMINAL LAW – intent to influence witness – threats made to procure change of witness statement – integrity of criminal justice system – importance of general deterrence - CRIMINAL LAW – demand money with menaces – extortion campaign – money demanded in exchange for return of witness’ property - SENTENCING – Crown appeal against manifest inadequacy of sentences – objective criminality – consideration of objective seriousness and subjective circumstances – totality principle – whether some other sentence warranted in law - SENTENCING – calculation of non-parole period – special circumstances – departure from statutory ratio

PRACTICE AND PROCEDURE – Miscellaneous Powers of Courts & Judges – Determining issues separately – r77 Criminal Appeal Rules

COSTS – Land and Environment Court Class 1 proceedings – Land and Environment Court Rules Part 16, Rule 4(2) – whether costs should follow the event in proceedings where questions of legal capacity arise – whether the decision of the primary judge inconsistent with an established approach of the Land and Environment Court – whether inconsistency constitutes error of law

Worker injured - insufficient permanent impairment for modified common law damages - claimed damages under Motor Accidents Compensation Act on basis of "injury" within definition in that Act - pin in coupling between trailer and towing vehicle removed - trailer drawbar became separated from towing vehicle and fell on worker's foot - trailer had mounting for jockey wheel but no jockey wheel - whether absence of jockey wheel a defect in the trailer - whether injury caused by absence of jockey wheel.

MORTGAGES – Mortgages and charges generally – Priority – First plaintiff, a company now in liquidation, is registered proprietor of land in New South Wales – Second plaintiff is liquidator of first plaintiff – Defendant holds registered mortgage over land – Liquidator contracted to sell land – Application by liquidator that defendant be required to provide discharge of mortgage – Whether liquidator entitled to equitable lien over land in priority to defendant’s interest as registered mortgagee to secure remuneration and expenses in caring for, preserving and realising land –Whether work done by liquidator for incontrovertible benefit of registered mortgagee – Application dismissed.

[SOLICITORS' EQUITABLE LIEN FOR COSTS] - usual undertaking as to damages - injunctions discharged - whether solicitors' equitable lien for costs applies to damages awarded as a result of an inquiry as to damages.

COSTS – claim against company – order against director not justified - COSTS – defendant who succeeds on limitation defence entitled to costs - EQUITY – breach of fiduciary duty – limitation period - LIMITATION – breach of fiduciary duty – limitation period - D

Appeal decision of Local Court Magistrate - trees on adjoining property - nuisance - Limitation Act - should different limitation periods arise with roots and branches or should the tree be treated as a whole

Termination of winding-up - No question of principle.

Family Provision. Application by elderly widow. Whether she should have capital to purchase aged care unit. Order for provision of capital by way of legacy.

remarks on sentence - jury verdict - unlawfully administer and unlawfully cause to be taken a drug with intent to procure miscarriage - facts relevant to sentence - aggravating factors - policy of law against unlawfully procuring miscarriage - focus upon health consequences - nature of unlawfulness - failure to make adequate inquiries - absence of belief in necessity to terminate pregnancy - offences complete on administration and consumption of drug - subsequent events not relevant to sentence - falsification of evidence - objective seriousness of offences - deterrence - denunciation - subjective circumstances

CORPORATIONS - winding up in insolvency - voidable transactions - meaning of "transaction" as regards directions for payment - whether directions for payment and deed of assignment are uncommercial transactions, insolvent transactions and unreasonable director-related transactions - whether breach of directors' fiduciary duty - appropriate orders

Family Law. De facto relationship. Adjustment of interests of parties in property. Commencement of de facto relationship. Respective contributions of parties. De facto relationship was of short duration.

personal injury claim - amateur rugby league football match - negligence alleged against administrators of rugby league competition - denial of negligence - defence of volenti non fit injuria - contributory negligence - application for claim to be determined by a jury - quantum of damages agreed - liability contested - causation in issue - claim against first defendant to be determined on common law principles - claim against fourth defendant subject to provisions of Civil Liability Act 2002 - whether interests of justice require trial by jury - construction of section - factors warranting trial by jury - application of general community contemporary values - whether determination involves moral, ethical and general social values - whether questions ought to be resolved by jury employing common sense and values of average jury person - whether administrators ought to be held liable for injury resulting from management decisions - standard of care of administrators - whether public confidence in verdict a relevant consideration - whether enhancement of settlement prospects a relevant consideration - jury trial ordered

INJUNCTIONS – Interlocutory injunctions – to restrain re-entry by lessor – where lessor had first converted lease to monthly tenancy and subsequently given one month’s notice – where lessee had delayed for six months in approaching Court – where lessor had agreed to suspend lessee’s monetary obligations pending feasibility study – where no evidence that feasibility study not completed - whether seriously arguable case of agreement or estoppel that suspension of lessee’s monetary obligations continued – where no evidence of attempt or intent or ability to remedy breaches - whether seriously arguable case for relief against forfeiture – interim relief refused.

CONTRACT – obligation to use “best endeavours” to pay debt – construction - whether breached – waiver – Damages – interest as damages - mitigation of damages – whether duty to mitigate applicable to claim for liquidated sum under contract – PARTNERSHIP - whether interest chargeable on inter-partnership loan account

FAMILY LAW AND CHILD WELFARE – Child Welfare – mother proposing to refuse treatment for child in utero – whether consent to medical treatment by person having “care responsibility” is sufficient if person having parental responsibility does not give, or refuses, consent – whether doctors statutory authority to carry out urgent medical treatment without consent extends to continuation of that treatment – ex parte proceedings.

SUCCESSION – EXECUTORS AND ADMINISTRATORS – administration – administrator pendente lite – when appointed – orders short of appointment of administrator pendente lite to enable specific practical problem to be dealt with.

PROFESSIONS AND TRADES - lawyers - authority to bring proceedings - authority to receive money pursuant to an order - analysis of capacity in which solicitor is acting when he or she uses available funds to pay a bill of the solicitor - PROCEDURE - miscellaneous procedural matters - Mareva orders - distinction between Mareva orders and orders for preservation of property concerning which a property right is claimed

Corporations - Winding-up - Application to terminate winding-up - Defendant company insolvent - Application refused - No question of principle.

CORPORATIONS – Winding-up – Liquidators – Appointment – Plaintiff alleged defendants had committed numerous contraventions of Corporations Act 2001 (Cth) – ss 315, 319, 601ED, 727, 734, 911A, 1018A Corporations Act – Where serious question to be tried that defendants had committed such contraventions – Whether provisional liquidator should be appointed to corporate defendants to allow for further investigations and to secure assets against risk of dissipation – Whether final orders should be made - Where sixth defendant presently engaged in sale of apartments in property development – Whether appointment of provisional liquidator to defendants would result in a “fire sale” of apartments and thus materially prejudice interests of investors – Order that provisional liquidator be appointed to corporate defendants other than sixth defendant.

Family Provision. Application by son when whole estate passed to second wife. Consideration of the circumstances of relationship between deceased and son. Order for a legacy.

PROCEDURE [722] – Contempt, attachment and sequestration – Attachment and committal – As a method of punishment – The order – Nature of punishment – Imprisonment – Civil proceedings – Refusal to answer questions.

Application for summary judgment - cross-claim application to transfer hardship application to Consumer Trader Tenancy Tribunal

Administrative Law - Liquor Law – penal and quasi-penal provisions – harm minimisation provisions of the Liquor Act 1982 (NSW) – short-term closure order regime s.104A order for closure of hotel premises void for jurisdictional error - procedural fairness in enforcing an order – whether the material the basis of a short-term closure order made ex parte under s.104A Liquor Act 1982 (NSW) should be served on the hotelier licensee with the closure order – whether the duty to act fairly extends to the making available to the hotelier licensee the material the basis of an ex parte order. - Jurisdiction, practice and procedure – warrants and other similar incidental powers – jurisdictional error – independent scrutiny limited to the question of the question as to whether the material in the application capable of satisfying authorised justice of statutory preconditions - judicial review of the making of a short-term closure order under s.104A Liquor Act 1982 (NSW) is restricted to the question whether the order is regularly made, as in the case of the review of warrants, where the relevant question is whether the warrant was regularly issued - duty to act fairly in enforcing order for closure of hotel premises made on ex parte application - refusal to provide material on or after service of order, used in support of application for s.104A order a breach of the duty to act fairly - declaration made that s.104A order void and of no effect.

Appeal from determination by Magistrate of costs where no hearing on the merits - statutory discretion matters which may be considered - importance of the conduct of "the parties" - indulgence principle - evidentiary insufficiencies - appellate rights and entitlement to judicial review - extension of time required to bring appeal.

Criminal Law - Practice and Procedure - Omission by defence counsel to lead character evidence - whether miscarriage of justice resulted - whether directions on consent erroneous or misleading - Sentence - relevance of character evidence - failure of judge to refer to special circumstances in setting non-parole period.

CRIMINAL LAW – money laundering – manifest inadequacy of sentence – importance of role as a facilitator – knowledge of seriousness of offence is a relevant factor – general deterrence - CRIMINAL LAW – importation of prohibited drug – manifest inadequacy of sentence – criminality – description of drug irrelevant to criminality – in circumstances, role of offender more important than time drugs in possession - JUDGE – reasoning process – necessary to understand remarks in totality - MENTAL ILLNESS – relevant to the sentencing process – to be weighed with all relevant factors – mathematical deductions from sentence inappropriate in a complex case - SENTENCING – concurrent sentences – appropriate where offences have common elements – inappropriate where offences are separate - SENTENCING – discount for assistance to authorities and plea of guilty – may be combined although not always appropriate to do so – focus is on totality - SENTENCING – discount for assistance to authorities – value of assistance – extent to which own involvement is honestly disclosed may be relevant

CRIMINAL LAW – sexual assault – appeal against conviction – appeal against sentence – directions to jury – whether misdirection – onus of proof – whether onus reversed – standard of proof – meaning of proof beyond reasonable doubt – whether sentence excessive

CROWN APPEAL - s 5F(2) Criminal Appeal Act 1912 - whether decision that complainant not competent to give unsworn evidence an interlocutory judgment or order - criteria under s 13(2) Evidence Act 1995 - limits of inquiry under s 13 - age-appropriate language for child complainant

Practice and Procedure - Separate question orders - References out

CRIMINAL PROCEDURE - committal hearings - attendance of complainants for cross examination - refusal to direct complainants to attend committal hearing - error of law - failure to properly administer a discretion - serious criminal charges - anticipated “no bill” applications - need to determine which charges should be jointly tried - limitation of time - committal not for rehearsing trial - interests of justice - meaning of “substantial reasons” - whether use of prerogative powers appropriate - discretionary considerations

Commencement of proceedings by court attendance notice - leave to extend time for filing service copy of notice

CORPORATIONS – Winding up – Application for termination of winding up – s 482 Corporations Act 2001 (Cth) considered – Whether liabilities of defendant company substantially exceed assets – Application granted - CORPORATIONS – Winding up – Effect of winding up – Powers of company officers during winding up – Application for order nunc pro tunc approving purported exercises of power by first and second applicants – s 471A Corporations Act considered – Where liquidator approved purported exercises of power in writing – Application granted.

CONTRACTS - GENERAL CONTRACTUAL PRINCIPLES - intention to enter legal relations - REAL PROPERTY - easements - when implied easements arise under first rule in Wheeldon v Burrows (1879) 12 Ch D 31 - PRINCIPAL AND AGENT - authority of agent - authority to enter contract distinguished from authority to administer contract - PRINCIPAL AND AGENT - authority of agent - ostensible authority - PRINCIPAL AND AGENT - ratification - need for full knowledge of material circumstances or adoption regardless of material circumstances - PRINCIPAL AND AGENT - ratification - circumstance in which adoption of part of a transaction involves ratifying the whole of it - EASEMENTS - implied incidental rights - LICENCES - implication of terms in - LICENCES - circumstances in which common law regards a licence as irrevocable - ESTOPPEL - equitable estoppel - proprietary estoppel - circumstances when a licence becomes irrevocable - effect on grant of injunction against revocation of licence of availability of remedy in damages against someone other than the licensor - EASEMENTS - creation - under statute - section 88K Conveyancing Act 1919 - requirement that proposed easement "reasonably necessary for the effective use or development" of the applicant's land - PRINCIPAL AND AGENT - breach of warranty of authority

Common Law - Personal Injury - duty of care owed by school to students - duty of care in before school hours - ad hoc supervision breached duty of care - risk not only foreseeable but foreseen - no duty of care owed by parents in that capacity - parent did not breach any duty by leaving child in school's care - contributory negligence of child - perception of risk by a 9 year old child - conduct of child in taking responsibility for own safety no less than could be reasonably expected - nevertheless, contribution awarded

CORPORATIONS [105]- Officers' duties- Whether breach of statutory duty by using confidential information for own purposes- Held "Yes", but duty no higher than general law- However consequences flow from finding- Corporations Act, 2001 (Cth) ss 182, 183, 1317E. EQUITY [34]- Fiduciary obligations- Employees- Covenant to be loyal and keep confidences- Employees taking steps whilst still employed, but outside work hours to initiate new rival business to commence when employment terminated- Use of some of employer's information to do so- Employer traded with brokers- Employees intended to trade with brokers' customers directly- Whether employees' business competing. EVIDENCE [75]- Professional legal privilege- Legal advice referred to in employees' business plan- As supporting plan- Plan annexed to affidavit- Production sought of documents recording that advice- Whether waiver of privilege- Disclosure of "substance" of advice or merely the effect of advice- Borderline case- Held privilege not waived- Evidence Act 1995, s 122(2). INTELLECTUAL PROPERTY [112]- Confidential information- Employer, insurance underwriter of agricultural insurance, holding information as to weather conditions and claims details- Information held confidential. WORDS & PHRASES- "Client"- Who is client A or B where A submits insurance proposal through B a broker- Held, in circumstances, B is client.

DAMAGES – economic loss – total incapacity – work related expenses saved – onus of proof - MASTER & SERVANT – whether contractor company or individual – Court acts on real arrangement - D

CORPORATIONS – voluntary administration – application to remove administrators on ground of apprehended bias – application brought after a judge has accepted an undertaking from the present administrators to call a meeting of creditors – application aimed to have different administrators chair the meeting – interaction between plaintiff succeeding in the present application, and proper conduct of the principal proceedings – balance of convenience

Family Provision claim by a widow. Awarded the whole of the estate. No matter of principle.